Thurston et al v. Conopco, Inc.

Filing 104

ORDER by Judge Hamilton denying 99 Motion to Consolidate Cases (pjhlc1, COURT STAFF) (Filed on 6/20/2013)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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For the Northern District of California

United States District Court

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CHANEE THURSTON, et al.,

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Plaintiffs,

No. C 10-4937 PJH

v.

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CONOPCO, INC. d/b/a UNILEVER,

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Defendant.
_______________________________

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ORDER DENYING MOTION TO
CONSOLIDATE AND MOTION FOR
APPOINTMENT OF INTERIM CO-LEAD
COUNSEL

ROSS CORRIETTE, et al.,
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Plaintiffs,

No. C 11-1811 PJH

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v.
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UNILEVER d/b/a BREYERS,
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Defendants
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_______________________________/
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Before the court is the motion of plaintiffs in the above-entitled related actions for an

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order consolidating the actions and appointing interim co-lead counsel. Having read the

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parties’ papers and carefully considered their arguments and the relevant legal authority,

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the court finds that the motion must be DENIED.

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Pursuant to Federal Rule of Civil Procedure 42, if actions before the court involve a

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common question of law or fact, the court may join for hearing or trial any or all matters at

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issue in the actions, consolidate the actions, or issue any other order to avoid unnecessary

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cost or delay. Fed. R. Civ. P. 42(a). If the court determines that common questions are

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present, it must then weigh the savings of time and effort that consolidation will produce

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against any inconvenience, delay, confusion, or prejudice that may result. Huene v. United

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States, 743 F.2d 703, 704 (9th Cir. 1984). Whether actions should be consolidated under

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Rule 42(a) is a matter committed to the trial court's discretion. Investors Research Co. v.

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U.S. District Court, 877 F.2d 777 (9th Cir. 1989).

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Although these two cases arise from essentially the same facts – the advertising and

assert is not “natural” – the operative complaints in the two actions differ considerably.

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For the Northern District of California

sales of ice cream labeled “all natural” which contained alkalized cocoa, which plaintiffs

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United States District Court

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Indeed, other than the similarity in the subject matter (use of alkalized cocoa in Breyers ice

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cream), the two cases do not have a lot in common.

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The operative complaint in Thurston is the amended complaint that was filed

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December 30, 2010, by two California residents. The plaintiffs proposed a class of all

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persons in the U.S. who purchased Breyers ice cream that contained alkalized cocoa, from

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October 20, 2006 to the present; and a sub-class of all persons who purchased Breyers ice

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cream with alkalized cocoa in California from October 20, 2006 to the present.

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The FAC alleges causes of action for (1) fraud, (2) unlawful business practices in

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violation of § 17200; (3) unfair business practices in violation of § 17200; (4) fraudulent

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business practices in violation of § 17200; (5) false advertising in violation of § 17500; and

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(6) restitution based on quasi-contract/unjust enrichment.

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The operative complaint in Corriette is the original complaint, which was filed in the

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District of New Jersey on November 4, 2010, by three New Jersey residents, one of whom

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later withdrew from the case. The plaintiffs proposed a nationwide class defined “in the

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alternative” as all persons in the U.S. who purchased Breyers ice cream from November 4,

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2004 to the present, or all persons in the U.S. who purchased Breyers ice cream in New

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Jersey from November 4, 2004 to the present.

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The complaint alleges causes of action for (1) violation of the New Jersey Consumer
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Fraud Act; (2) breach of express warranty; (3) unjust enrichment and common law

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restitution; (4) breach of implied warranty of merchantability; and (5) breach of implied

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warranty of fitness for a particular purpose.

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The proposed consolidated amended complaint asserts (a) a class consisting of all

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consumers who bought Breyers ice cream with alkalized cocoa in the U.S. after October

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20, 2006, (b) a “California sub-class” consisting of persons who bought Breyers ice cream

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with alkalized cocoa in California after October 20, 2006; and (c) a “New Jersey sub-class”

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consisting of all persons who bought Breyers ice cream with alkalized cocoa in New Jersey

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after October 20, 2006.
The proposed consolidated amended complaint alleges causes of action for

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For the Northern District of California

United States District Court

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(1) fraud; (2) unlawful business practices1 in violation of § 17200 (on behalf of the named

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plaintiffs in Thurston, and the California sub-class); (3) unfair business practices in violation

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of § 17200 (on behalf of the named plaintiffs in Thurston and the California sub-class);

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(4) fraudulent business practices in violation of § 17200 (on behalf of the named plaintiffs in

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Thurston and the California sub-class); (5) false advertising in violation of § 17500 (on

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behalf of the named plaintiffs in Thurston, the California sub-class, and “the general public

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of the State of California”); (6) violation of the New Jersey Consumer Fraud Act (on behalf

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of “a nationwide class and alternatively by [the named plaintiffs in Corriette] on behalf of

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themselves and the New Jersey sub-class members”); (7) breach of express warranty; and

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(8) restitution based on quasi-contract/unjust enrichment.

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This proposed consolidated complaint highlights the differences between the two

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cases, as four of the eight causes of action apply only to members of the “California sub-

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class,” one of the four remaining causes of action appears to apply only to members of the

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“New Jersey sub-class” (though plaintiffs seem to think it can also be asserted by members

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of the nationwide class), and only three of the eight total causes of action can presumably

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be brought on behalf of the nationwide class.

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The law that was allegedly violated is the California Sherman Law.
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On balance, and in light of the differences between the two cases, the court finds

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that consolidation would result in no savings of time or effort for the court, and will likely

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result in a degree of confusion and delay. The proposed consolidated complaint simply

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combines the allegations, causes of action, and counsel from both cases. Consolidation

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will not streamline the litigation, but will rather add bulk, as the California and New Jersey

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claims will still have to be resolved for differing groups of plaintiffs. Related case status will

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serve to permit coordinated discovery and motion practice. However, the trials will be

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scheduled separately.

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IT IS SO ORDERED.

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For the Northern District of California

United States District Court

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Dated: June 20, 2013
______________________________
PHYLLIS J. HAMILTON
United States District Judge

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