McClendon v. Sensa Products LLC et al

Filing 110

ORDER GRANTING MOTION OF PLAINTIFF McCLENDON TO APPOINT INTERIM CLASS COUNSEL AND DENYING MOTION OF PLAINTIFF MELANIE GORDON TO APPOINT TINA WOLFSON INTERIM CO-LEAD COUNSEL by Judge Yvonne Gonzalez Rogers granting (88) Motion to Appoint Counsel ; denying (106) Motion to Appoint Counsel in case 4:11-cv-01650-YGR. The discovery stay previously ordered on 12/28/11 is DISSOLVED. The parties shall proceed with discovery in this case. (fs, COURT STAFF) (Filed on 3/2/2012)

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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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Case No.: 11-CV-1650-YGR
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Northern District of California

United States District Court

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IN RE SENSA WEIGHT LOSS
LITIGATION

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------------------------------------------And related action

And related case 11-CV-5516 YGR
ORDER GRANTING MOTION OF PLAINTIFF
MCCLENDON TO APPOINT INTERIM CLASS
COUNSEL AND DENYING MOTION OF
PLAINTIFF MELANIE GORDON TO APPOINT
TINA WOLFSON INTERIM CO-LEAD COUNSEL

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POLIN MAHBOUBIAN,
Plaintiff,
v.
SENSA PRODUCTS, LLC,
Defendant.

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Plaintiffs Jeanette McClendon, Melanie Gordon, and Linda Breeding bring these consolidated,
putative class actions against Defendants Sensa Products LLC and Alan R. Hirsch, Intelligent Beauty,
Inc., General Nutrition Corporation, and General Nutrition Centers, Inc. (“Defendants”) alleging false
and deceptive advertising in connection with the Sensa Weight Loss System.
Plaintiffs allege claims for violation of, inter alia, the California Consumer Legal Remedies
Act, California Civil Code §1750 et seq., the California False Advertising Law, Business &
Professions Code §17500 et seq., and the California Unfair Competition Law, Business & Professions

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Code §17200 et seq. Plaintiff Polin Mahboubian brings a related action against Sensa Products, LLC

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alleging similar claims.
Plaintiff Jeanette McClendon filed a Motion to Appoint her counsel, the firms of Bursor &

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Fisher, P.A., and Milberg, LLP, as Interim Class Counsel per Rule 23(g)(3) of the Federal Rules of

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Civil Procedure. (Dkt. No. 88.) Plaintiffs Gordon, Breeding and Mahboubian (“the Coalition

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Plaintiffs”) filed a competing motion for appointment of co-lead, interim class counsel. The motion

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of the Coalition Plaintiffs seeks appointment of Tina Wolfson, of Ahdoot & Wolfson, APC as co-lead

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counsel along with one of the counsel representing Plaintiff McClendon, but not both. 1 (Dkt. No. 86,

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106.)

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Having carefully considered the papers submitted and the pleadings in this action, the Court

Northern District of California

hereby GRANTS the motion of Plaintiff McClendon and DENIES the motion of Coalition Plaintiffs.2

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United States District Court

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Rule 23(g)(3) permits a court to designate interim counsel to act on behalf of the putative class

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when necessary to protect the interests of the putative class. See In re Air Cargo Shipping Services

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Antitrust Litigation, 240 F.R.D. 56, 57 (E.D.N.Y., 2006); Parkinson v. Hyundai Motor America, 2006

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WL 2289801 at *2 (CD Cal., August 7, 2006). In making the decision to designate interim class

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counsel, courts generally have applied the considerations set forth in Rule 23(g)(1)(A). In re Air

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Cargo Shipping, 240 FRD at 57; Hill v. The Tribune Co., 2005 WL 3299144 at *3-4 (N.D. Ill.

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October 13, 2005). Those considerations are:

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(i)

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(ii)
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(iii)
(iv)

the work counsel has done in identifying or investigating potential claims in the
action;
counsel's experience in handling class actions, other complex litigation, and the
types of claims asserted in the action;
counsel's knowledge of the applicable law; and
the resources that counsel will commit to representing the class.

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The firm of Ahdoot & Wolfson, APC represents Plaintiff Gordon. The Senators Firm, LLP
represents Plaintiff Breeding. The firm of Ram, Olson, Cereghino & Kopczynski, LLP represents
Plaintiff Mahboubian.
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Pursuant to Federal Rule of Civil Procedure 78(b) and Civil Local Rule 7-1(b), the Court
finds that these motions are appropriate for decision without oral argument. Accordingly, the Court
VACATES the hearings set for March 6, 2012.
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Federal Rules of Civil Procedure Rule 23 (a)(1)(A). A court may also consider, “any other matter

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pertinent to counsel's ability to fairly and adequately represent the interests of the class.” Federal

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Rules of Civil Procedure Rule 23(a)(1)(B).

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Based upon these considerations, and upon the information submitted by all counsel, the Court

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APPOINTS L. Timothy Fisher of Bursor & Fisher, P.A., and Jeff S. Westerman of Milberg LLP as
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Interim Class Counsel for the Plaintiffs and the proposed classes they represent in these consolidated

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actions and in the related Mahboubian action.

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Plaintiffs’ Interim Class Counsel shall have overall case management and litigation
responsibility and shall assume and exercise the following powers and responsibilities in the most

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Northern District of California

United States District Court

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efficient manner that benefits the proposed class:
(a)

To make all work assignments on behalf of Plaintiffs in such a manner as to promote

the orderly and efficient conduct of this litigation and to avoid unnecessary duplication and expense;
(b)

To supervise and monitor the activities of Plaintiffs’ counsel and to implement

procedures to ensure that unnecessary expenditures of time and funds by counsel are avoided;

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(c)

To determine and present in pleadings, motions, briefs, oral argument or such other

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fashion as may be appropriate to the Court and opposing parties, the position of the Plaintiffs as to all

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matters arising during all pretrial and trial proceedings;

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(d)

To conduct or coordinate discovery on behalf of Plaintiffs consistent with the

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requirements of the Federal Rules of Civil Procedure;
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(e)

To enter into stipulations with opposing counsel for the conduct of the litigation;

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(f)

To sign all papers filed or submitted on behalf of Plaintiffs;

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(g)

To conduct all pre-trial, trial and post-trial proceedings on behalf of Plaintiffs;

(h)

To employ and consult with experts;

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(i)

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To call and chair regular meetings of Plaintiffs’ counsel;

(j)

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To conduct settlement negotiations with Defendant on behalf of Plaintiffs and to add

such additional counsel as Plaintiffs’ Interim Class Counsel may select;

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(k)

To otherwise coordinate the work of all Plaintiffs’ counsel, and perform such other

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duties as the Plaintiffs’ Interim Class Counsel deem necessary or as authorized by further order of the
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Court;
(l)

To recommend apportionment and allocation of fees and expenses subject to Court

approval; and
(m)

To have authority over all other matters concerning the prosecution or resolution of the

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Northern District of California

United States District Court

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above-referenced actions.

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Plaintiffs’ Interim Class Counsel shall affect service on all parties by serving a copy on all

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other parties’ counsel by electronic mail, overnight mail, facsimile or hand delivery. The Court’s

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Master Service List shall govern in all proceedings. Plaintiffs’ Interim Class Counsel shall be the

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contact between Plaintiffs’ counsel and Defendant’s counsel, and shall cooperate to act as the

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spokesperson for all Plaintiffs. Plaintiffs’ Interim Class Counsel shall direct and coordinate the

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activities of all Plaintiffs’ counsel and shall also be responsible for communicating with the Court.

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Plaintiffs’ Interim Class Counsel are designated as the contact persons from Plaintiffs’ counsel and as

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the attorneys of record with whom the Court will be dealing throughout the course of this litigation.

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Plaintiffs’ Interim Class Counsel shall be responsible for receiving and, as appropriate,
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distributing to other counsel Orders from the Court and documents from opposing counsel, and

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otherwise facilitating and expediting communications to the Court. Service by the Defendants on

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Plaintiffs of any papers shall be deemed to be complete for all purposes when a copy is served on the

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Plaintiffs’ Interim Class Counsel. The appointment of Plaintiffs’ Interim Class Counsel shall not
constitute a waiver by any party of any claims in or defenses in any of the related actions.

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FURTHER ORDERS
1.

Counsel for Plaintiff Mahboubian indicated that he intended to file a motion or

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stipulation for consolidation of that action. He is directed to do so no later than 14 days from the date
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of this order.
2.

Plaintiffs’ Interim Class Counsel shall jointly file within 30 days of the date of this

order, a master consolidated complaint, which will serve as the operative complaint for the
consolidated action.

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Northern District of California

United States District Court

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3.

The discovery stay previously ordered on December 28, 2011, is DISSOLVED. The

parties shall proceed with discovery in this case.

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This terminates Docket Numbers 88 and 106.

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IT IS SO ORDERED.

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March 2, 2012

_______________________________________
YVONNE GONZALEZ ROGERS
UNITED STATES DISTRICT COURT JUDGE

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