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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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 NORTHERN DISTRICT OF CALIFORNIA 9 10 Case No.: 11-CV-1650-YGR 11 Northern District of California United States District Court 12 IN RE SENSA WEIGHT LOSS LITIGATION 13 14 15 ------------------------------------------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 16 17 18 19 POLIN MAHBOUBIAN, Plaintiff, v. SENSA PRODUCTS, LLC, Defendant. 20 21 22 23 24 25 26 27 28 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 1 Code §17200 et seq. Plaintiff Polin Mahboubian brings a related action against Sensa Products, LLC 2 alleging similar claims. Plaintiff Jeanette McClendon filed a Motion to Appoint her counsel, the firms of Bursor & 3 4 Fisher, P.A., and Milberg, LLP, as Interim Class Counsel per Rule 23(g)(3) of the Federal Rules of 5 Civil Procedure. (Dkt. No. 88.) Plaintiffs Gordon, Breeding and Mahboubian (“the Coalition 6 Plaintiffs”) filed a competing motion for appointment of co-lead, interim class counsel. The motion 7 of the Coalition Plaintiffs seeks appointment of Tina Wolfson, of Ahdoot & Wolfson, APC as co-lead 8 counsel along with one of the counsel representing Plaintiff McClendon, but not both. 1 (Dkt. No. 86, 9 106.) 10 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 12 United States District Court 11 Rule 23(g)(3) permits a court to designate interim counsel to act on behalf of the putative class 13 when necessary to protect the interests of the putative class. See In re Air Cargo Shipping Services 14 Antitrust Litigation, 240 F.R.D. 56, 57 (E.D.N.Y., 2006); Parkinson v. Hyundai Motor America, 2006 15 WL 2289801 at *2 (CD Cal., August 7, 2006). In making the decision to designate interim class 16 counsel, courts generally have applied the considerations set forth in Rule 23(g)(1)(A). In re Air 17 Cargo Shipping, 240 FRD at 57; Hill v. The Tribune Co., 2005 WL 3299144 at *3-4 (N.D. Ill. 18 October 13, 2005). Those considerations are: 19 (i) 20 (ii) 21 22 (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. 23 24 25 26 27 28 1 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. 2 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. 2 1 Federal Rules of Civil Procedure Rule 23 (a)(1)(A). A court may also consider, “any other matter 2 pertinent to counsel's ability to fairly and adequately represent the interests of the class.” Federal 3 Rules of Civil Procedure Rule 23(a)(1)(B). 4 Based upon these considerations, and upon the information submitted by all counsel, the Court 5 APPOINTS L. Timothy Fisher of Bursor & Fisher, P.A., and Jeff S. Westerman of Milberg LLP as 6 7 Interim Class Counsel for the Plaintiffs and the proposed classes they represent in these consolidated 8 actions and in the related Mahboubian action. 9 10 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 11 Northern District of California United States District Court 12 13 14 15 16 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; 17 18 (c) To determine and present in pleadings, motions, briefs, oral argument or such other 19 fashion as may be appropriate to the Court and opposing parties, the position of the Plaintiffs as to all 20 matters arising during all pretrial and trial proceedings; 21 (d) To conduct or coordinate discovery on behalf of Plaintiffs consistent with the 22 requirements of the Federal Rules of Civil Procedure; 23 24 (e) To enter into stipulations with opposing counsel for the conduct of the litigation; 25 (f) To sign all papers filed or submitted on behalf of Plaintiffs; 26 (g) To conduct all pre-trial, trial and post-trial proceedings on behalf of Plaintiffs; (h) To employ and consult with experts; 27 28 3 (i) 2 3 To call and chair regular meetings of Plaintiffs’ counsel; (j) 1 To conduct settlement negotiations with Defendant on behalf of Plaintiffs and to add such additional counsel as Plaintiffs’ Interim Class Counsel may select; 4 (k) To otherwise coordinate the work of all Plaintiffs’ counsel, and perform such other 5 duties as the Plaintiffs’ Interim Class Counsel deem necessary or as authorized by further order of the 6 7 8 9 10 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 11 Northern District of California United States District Court 12 above-referenced actions. 13 Plaintiffs’ Interim Class Counsel shall affect service on all parties by serving a copy on all 14 other parties’ counsel by electronic mail, overnight mail, facsimile or hand delivery. The Court’s 15 Master Service List shall govern in all proceedings. Plaintiffs’ Interim Class Counsel shall be the 16 contact between Plaintiffs’ counsel and Defendant’s counsel, and shall cooperate to act as the 17 18 spokesperson for all Plaintiffs. Plaintiffs’ Interim Class Counsel shall direct and coordinate the 19 activities of all Plaintiffs’ counsel and shall also be responsible for communicating with the Court. 20 Plaintiffs’ Interim Class Counsel are designated as the contact persons from Plaintiffs’ counsel and as 21 the attorneys of record with whom the Court will be dealing throughout the course of this litigation. 22 Plaintiffs’ Interim Class Counsel shall be responsible for receiving and, as appropriate, 23 24 distributing to other counsel Orders from the Court and documents from opposing counsel, and 25 otherwise facilitating and expediting communications to the Court. Service by the Defendants on 26 Plaintiffs of any papers shall be deemed to be complete for all purposes when a copy is served on the 27 28 4 1 2 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. 3 4 FURTHER ORDERS 1. Counsel for Plaintiff Mahboubian indicated that he intended to file a motion or 5 stipulation for consolidation of that action. He is directed to do so no later than 14 days from the date 6 7 8 9 10 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. 11 Northern District of California United States District Court 12 13 3. The discovery stay previously ordered on December 28, 2011, is DISSOLVED. The parties shall proceed with discovery in this case. 14 This terminates Docket Numbers 88 and 106. 15 IT IS SO ORDERED. 16 17 March 2, 2012 _______________________________________ YVONNE GONZALEZ ROGERS UNITED STATES DISTRICT COURT JUDGE 18 19 20 21 22 23 24 25 26 27 28 5

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