Barber v. Target Corporation, a Minnesota Corporation
Filing
21
CERTIFIED COPY of the TRANSFER ORDER from the Judicial Panel on Multidistrict Litigation (MDL Panel) transferring the above-entitled action to the Northern District of Illinois, Eastern Division, where it has been directly assigned to Judge John W. Darrah case number 15cv5113.. Signed by Judge MDL Panel on 6/11/15. (cv, COURT STAFF) (Filed on 6/11/2015)
Case MDL No. 2619 Document 88 Filed 06/09/15 Page 1 of 10
UNITED STATES JUDICIAL PANEL
on
MULTIDISTRICT LITIGATION
IN RE: WALGREENS HERBAL SUPPLEMENTS
MARKETING AND SALES PRACTICES LITIGATION
MDL No. 2619
IN RE: WAL-MART STORES, INC., HERBAL SUPPLEMENTS
MARKETING AND SALES PRACTICES LITIGATION
MDL No. 2620
IN RE: GNC CORP. HERBAL SUPPLEMENTS
MARKETING AND SALES PRACTICES LITIGATION
MDL No. 2621
IN RE: TARGET CORP. HERBAL SUPPLEMENTS
MARKETING AND SALES PRACTICES LITIGATION
MDL No. 2622
TRANSFER ORDER
Before the Panel:* Before the Panel are four dockets arising from a New York state
investigation into the herbal supplements industry, which allegedly found based on DNA barcode
testing that store brand supplements sold by Walgreens, Wal-Mart, GNC, and Target contained
fillers and contaminants in place of the herbal ingredients listed on the product labels.
Plaintiffs in six actions move under 28 U.S.C. § 1407 to centralize each of the abovecaptioned dockets on a retailer-specific basis in various districts. In MDL No. 2619, plaintiff in one
action seeks centralization of the Walgreens actions in the Northern District of Illinois. In MDL No.
2620, plaintiffs in three actions seek centralization of the Wal-Mart actions in the Western District
of Arkansas or the Northern District of California. In MDL No. 2621, plaintiff in one action seeks
centralization of the GNC actions in the Southern District of Florida or the Northern District of
Illinois. In MDL No. 2622, plaintiff in one action seeks centralization of the Target actions in the
Northern District of California or, alternatively, the Northern District of Illinois. This litigation
currently consists of 35 actions, as listed on the attached schedules. The Panel has been notified of
over 30 potentially related actions.1
A TRUE COPY-ATTEST
THOMAS G. BRUTON, CLERK
*
Certain Panel members who could be members of the putative classes in this l-tigation
s
classes in this litigation
ses
is itigation
itigatio
By: decision.
have renounced their participation in these classes and have participated in this decision.
ve
this d MELISSA RIVERA
i s/ i i n
DEPUTY CLERK
U.S. DISTRICT COURT, ),
NORTHERN
1
These and any other related actions are potential tag-along actions. See Panel Rules 1.1(h),
ag-along
e Panel Rules 1.1(h),
anel ul
el
1(h),
DISTRICT OF ILLINOIS
7.1 and 7.2.
June 11, 2015
Case MDL No. 2619 Document 88 Filed 06/09/15 Page 2 of 10
-2All defendants2 and responding plaintiffs support centralization, but disagree on the structure
of the proposed dockets (four retailer-specific MDLs or a single omnibus MDL) and the proposed
transferee districts. Defendants Walgreens, Wal-Mart, Target, and NBTY support centralization of
four retailer-specific MDLs before one judge in the Northern District of Illinois or, alternatively, in
another district in which a defendant has its headquarters. Defendant GNC agrees, but proposes the
Western District of Pennsylvania in the first instance and, alternatively, the Northern District of
Illinois. Plaintiffs in 15 actions support the creation of four retailer-specific MDLs in separate
districts. Plaintiffs in 28 actions support centralization of all actions before the Panel in a single
district and, of those, plaintiffs in about a dozen actions argue for creation of a single omnibus MDL.
In total, responding plaintiffs propose 12 districts for the various proposed MDLs: the Eastern and
Western Districts of Arkansas; the Central, Northern, and Southern Districts of California; the
Southern District of Florida; the Northern District of Illinois; the Western District of Kentucky; the
District of Minnesota; the Western District of Missouri; the Eastern District of New York; and the
Southern District of Ohio.
We find that common factual questions in all actions unquestionably arise from the New
York attorney general’s determination based on DNA barcode testing that certain herbal supplements
sold by Walgreens, Wal-Mart, GNC, and Target do not contain the herbs advertised on the label and
instead contain fillers or contaminants. Thus, discovery and motions concerning the testing will be
substantially the same, regardless of the named defendant. At oral argument, no party disputed that
all actions overlap on at least those matters.
The only issue is whether creation of a single multi-retailer MDL or four retailer-specific
MDLs will achieve greater efficiencies. The parties supporting creation of retailer-specific MDLs
argue that separate MDLs are warranted principally because (1) each defendant’s labeling,
marketing, manufacturing, and sourcing practices will raise unique factual issues; (2) retailerspecific motions can be more efficiently presented and resolved in separate dockets;3 and (3)
defendants are direct competitors and thus, will need to protect against the disclosure of confidential
manufacturing, marketing, and other information.
2
Responding defendants are Walgreen Co.; Duane Reade, Inc.; and Walgreens Boots
Alliance, Inc. (collectively, Walgreens); Wal-Mart Stores, Inc.; Wal-Mart Associates, Inc.;
Wal-Mart.com USA, LLC; Wal-Mart Stores East LP; Wal-Mart Stores East Inc.; Wal-Mart Starco,
LLC; Wal-Mart Stores Arkansas, LLC; and Wal-Mart TRS, LLC (collectively, Wal-Mart); General
Nutrition Corporation; General Nutrition Centers, Inc.; and GNC Holdings, Inc. (collectively, GNC);
Target Corporation and Target Brands, Inc. (collectively, Target); and NBTY, Inc.
3
For example, GNC asserts that it recently reached an agreement with the New York
attorney general that should result in dismissal of all pending claims against GNC. At oral argument,
GNC represented that, thus far, plaintiffs in six actions have voluntarily dismissed their cases against
GNC.
Case MDL No. 2619 Document 88 Filed 06/09/15 Page 3 of 10
-3In response, plaintiffs supporting a single multi-retailer MDL argue that (1) the central factual
issues in all four dockets focus on the same New York attorney general investigation and, in
particular, the DNA barcode testing; (2) since overlapping discovery and motions practice
concerning the validity of the DNA testing will be substantial, centralization is necessary to avoid
inconsistent rulings – a point defendants acknowledge; and (3) retailer-specific factual issues and
protection of confidential proprietary information can be addressed by creating separate tracks for
each retailer. These plaintiffs also argue that many actions allege NBTY is a common supplier for
some or all involved retailers, which makes the creation of separate MDLs impracticable. They also
note that there are at least seven actions asserting claims against all four retailers, which would be
difficult to sever and transfer into four separate MDLs. These plaintiffs, along with defendants,
assert that under any scenario, the proposed MDL(s) should be centralized before the same transferee
judge because the proposed statewide and nationwide classes overlap substantially and present
competing class definitions.
In our judgment, a single MDL encompassing all four retailers is necessary to ensure the just
and efficient conduct of this litigation. In many situations, we are hesitant to bring together actions
involving separate defendants and products, but where, as here, the actions stem from the same
government investigation and there is significant overlap in the central factual issues, parties, and
claims, we find that creation of a single MDL is warranted.4 A single MDL is the most appropriate
vehicle for resolving defendants’ common challenges to the validity of the DNA testing, the
anticipated common third-party discovery involving the New York attorney general’s investigation,
discovery of any common suppliers, and management of the competing putative classes. Although
the advocates of separate MDLs have identified certain retailer-specific issues, Section 1407 does
not require a complete identity of common factual issues or parties as a prerequisite to transfer, and
the presence of additional facts is not significant where the actions arise from a common factual
core.5 We are confident that the transferee judge can accommodate any issues involving the different
products and defendants, including confidentiality and retailer-specific resolutions, in a manner that
guarantees the just and efficient resolution of all cases.
Several parties have requested that we order the creation of separate tracks for each retailer,
largely repeating the arguments of those advocating separate MDLs. But we have long left the
degree of coordination of involved actions to the sound discretion of the transferee judge. See In re:
Frito-Lay North America, Inc. “All Natural” Litig., 908 F. Supp. 2d, 1379, 1380 (J.P.M.L. 2012).
We often have observed that the transferee court can employ any number of pretrial techniques, such
as establishing separate discovery and motion tracks, to manage pretrial proceedings efficiently. In
the Panel briefing, the parties have discussed additional case management tools that have been
successful in other MDLs. It is incumbent upon the parties to bring their concerns to the attention
4
See, e.g., In re: Automotive Wire Harness Sys. Antitrust Litig., 867 F. Supp. 2d 1349, 1350
(J.P.M.L. 2012) (centralizing three proposed dockets concerning different types of automotive
products in a single MDL because each proposed docket shared significant factual issues and
“stem[med] from the same government investigation”).
5
See In re: Auto Body Shop Antitrust Litig., 37 F. Supp. 3d 1388, 1390 (J.P.M.L. 2014).
Case MDL No. 2619 Document 88 Filed 06/09/15 Page 4 of 10
-4of the transferee court and to propose ways to resolve them. If the transferee judge views
establishing separate tracks for the different retailers appropriate, then he can do so, but that is a
matter dedicated to his discretion.
On the basis of the papers filed and the hearing session held, we find that the actions listed
on the attached schedules involve common questions of fact and that centralization will serve the
convenience of the parties and witnesses and promote the just and efficient conduct of this litigation.
All of the actions present common factual questions arising from the New York attorney general
investigation allegedly determining in February 2015 that certain store brand herbal supplements sold
by Walgreens, Wal-Mart, Target, and GNC did not contain the herbs advertised on the label and
instead contained fillers or contaminants.6 Centralization will eliminate duplicative discovery;
prevent inconsistent pretrial rulings, including with respect to class certification; and conserve the
resources of the parties, their counsel, and the judiciary.
The Northern District of Illinois is an appropriate transferee district for this litigation. This
district provides a convenient and accessible forum for actions filed throughout the country regarding
products sold nationwide. Walgreens, Wal-Mart, Target, and NBTY support this district, and GNC
supports it in the alternative. Responding plaintiffs in over 20 actions also support this district as
their first or second choice. A significant number of actions are pending in this district, which is also
where the Walgreens defendants are based. Judge John W. Darrah is an experienced transferee judge
and currently presides over one action involving all four retailers. We are confident that he will steer
this litigation on a prudent course.
IT IS THEREFORE ORDERED that the actions listed on Schedules A, B, C, and D, and
pending outside the Northern District of Illinois are transferred to the Northern District of Illinois
and, with the consent of that court, assigned to the Honorable John W. Darrah for coordinated or
consolidated pretrial proceedings.
IT IS FURTHER ORDERED that plaintiffs’ motions for centralization in MDL Nos. 2619,
2620, 2621, and 2622, are denied in all other respects.
IT IS FURTHER ORDERED that MDL No. 2619 is renamed In re: Herbal Supplements
Marketing and Sales Practices Litigation.
6
The herbal supplements at issue are Walgreens’ Finest Nutrition products; Wal-Mart’s
Spring Valley products; GNC’s Herbal Plus products; and Target’s Up & Up products. Plaintiffs
allege that one or more of the following herbs advertised on the labels were not contained in the
products: ginkgo biloba, St. John’s Wort, echinacea, ginseng, garlic, saw palmetto, and valerian root.
Case MDL No. 2619 Document 88 Filed 06/09/15 Page 5 of 10
-5PANEL ON MULTIDISTRICT LITIGATION
Sarah S. Vance
Chair
Marjorie O. Rendell
Lewis A. Kaplan
R. David Proctor
Charles R. Breyer
Ellen Segal Huvelle
Catherine D. Perry
Case MDL No. 2619 Document 88 Filed 06/09/15 Page 6 of 10
IN RE: WALGREENS HERBAL SUPPLEMENTS
MARKETING AND SALES PRACTICES LITIGATION
MDL No. 2619
SCHEDULE A
Western District of Arkansas
CLEMMONS v. WALGREEN CO., C.A. No. 5:15-05032
Central District of California
CUMMINS v. WALGREEN CO., ET AL., C.A. No. 2:15-00911
Northern District of California
DE LA TORRE, ET AL. v. WALGREEN CO., C.A. No. 5:15-00556
Southern District of California
HERNANDEZ v. WALGREENS COMPANY, C.A. No. 3:15-00260
Northern District of Illinois
HALE, ET AL. v. WALGREEN CO., ET AL., C.A. No. 1:15-01182
ALLSUP v. WALGREEN CO., C.A. No. 1:15-01244
HOLLIS v. WALGREENS BOOTS ALLIANCE, INC., ET AL., C.A. No. 1:15-01265
ANDREWS v. WALGREEN CO., C.A. No. 1:15-01308
Eastern District of Missouri
KARDASZ v. WALGREEN CO., C.A. No. 4:15-00251
Southern District of Ohio
TRINIDAD v. WALGREEN CO., ET AL., C.A. No. 1:15-00090
Case MDL No. 2619 Document 88 Filed 06/09/15 Page 7 of 10
IN RE: WAL-MART STORES, INC., HERBAL SUPPLEMENTS
MARKETING AND SALES PRACTICES LITIGATION
MDL No. 2620
SCHEDULE B
Eastern District of Arkansas
JONES v. WAL-MART STORES, INC., ET AL., C.A. No. 4:15-00085
Western District of Arkansas
SPARKS v. WAL-MART STORES, INC., C.A. No. 5:15-05031
Central District of California
SHAHRASHIAN v. WAL-MART STORES, INC., ET AL., C.A. No. 2:15-00978
Northern District of California
TAKETA, ET AL. v. WAL-MART STORES, INC., C.A. No. 3:15-00542
DE LA TORRE, ET AL. v. WAL-MART STORES, INC., C.A. No. 5:15-00557
Northern District of Florida
HAJE v. WAL-MART STORES, INC., C.A. No. 3:15-00039
Southern District of Florida
MARSHALL, ET AL. v. WAL-MART STORES, INC., C.A. No. 0:15-60246
Northern District of Illinois
HALE, ET AL. v. WALGREEN CO., ET AL., C.A. No. 1:15-01182
Southern District of Indiana
MYERS v. WAL-MART STORES, INC., ET AL., C.A. No. 4:15-00019
Western District of Kentucky
MOORS v. WAL-MART STORES, INC., ET AL., C.A. No. 3:15-00123
Case MDL No. 2619 Document 88 Filed 06/09/15 Page 8 of 10
- B2 District of Massachusetts
MAYER v. WAL-MART STORES INC., C.A. No. 1:15-10287
Eastern District of Missouri
FIGUEIREDO, ET AL. v. WAL-MART STORES, INC., C.A. No. 4:15-00249
HANNA, ET AL. v. WAL-MART STORES, ET AL., C.A. No. 4:15-00295
Western District of Missouri
STOKES v. WAL-MART STORES, INC., C.A. No. 2:15-04027
LOWE v. WAL-MART STORES, INC., C.A. No. 2:15-04030
Northern District of Ohio
MAGER v. GNC HOLDINGS, INC., ET AL., C.A. No. 5:15-00267
Southern District of Ohio
TRINIDAD v. WAL-MART STORES, INC., ET AL., C.A. No. 1:15-00091
District of Oregon
STEVENS v. WAL-MART STORES, INC., ET AL., C.A. No. 3:15-00243
Case MDL No. 2619 Document 88 Filed 06/09/15 Page 9 of 10
IN RE: GNC CORP. HERBAL SUPPLEMENTS
MARKETING AND SALES PRACTICES LITIGATION
MDL No. 2621
SCHEDULE C
Western District of Arkansas
CLEMMONS v. GENERAL NUTRITION CORP., ET AL., C.A. No. 5:15-05036
Northern District of California
DE LA TORRE, ET AL. v. GNC HOLDINGS, INC., ET AL., C.A. No. 5:15-00561
Southern District of Florida
REYES v. GENERAL NUTRITION CORPORATION, ET AL., C.A. No. 1:15-20513
DORE v. GNC HOLDINGS, INC., ET AL., C.A. No. 1:15-20618
Northern District of Ohio
MAGER v. GNC HOLDINGS, INC., ET AL., C.A. No. 5:15-00267
Case MDL No. 2619 Document 88 Filed 06/09/15 Page 10 of 10
IN RE: TARGET CORP. HERBAL SUPPLEMENTS
MARKETING AND SALES PRACTICES LITIGATION
MDL No. 2622
SCHEDULE D
Western District of Arkansas
SPARKS v. TARGET BRANDS, INC., ET AL., C.A. No. 5:15-05033
Northern District of California
FARRELL v. TARGET CORPORATION, C.A. No. 5:15-00635
BARBER v. TARGET CORPORATION, C.A. No. 5:15-00568
DE LA TORRE, ET AL. v. TARGET CORPORATION, ET AL., C.A. No. 5:15-00559
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