Hohenberg v. Ferrero USA, Inc

Filing 63

NOTICE of MDL Filing: Order Denying Transfer (kaj)

Case MDL No. 2248 Document 28 Filed 08/16/11 'Page..l qf 3

UNITED STATES JUDICIAL PANE
on

MUL TIDISTRICT LITIGATION

IN RE: NUTELLA MARKETING AND
SALES PRACTICES LITIGATION

ORDER DENYING TRANSFER

MDLNo.2248

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Before the Panel:> Pursuant to 28 U.S.c. § 1407, plaintiff in the District ofNew Jersey action
seeks centralization of three actions pending in two districts as listed on Schedule A. I Moving plaintiff
seeks centralization in the District of New Jersey. Lone defendant Ferrero U.S.A., Inc. (Ferrero)
supports the motion. Plaintiffs in the two Southern District of California actions, now consolidated,
initially opposed the motion and suggested centralization in the Southern District of California in the
event the Panel ordered centralization over their objections. At oral argument, however, these plaintiffs
supported centralization in the Southern District of California.
Movants and respondents recommend centralization because the actions contain similar
allegations concerning Ferrero's advertising, marketing and sale of Nutella spread and its alleged
misrepresentations of Nutella as a healthy and nutritious food. All parties also now agree upon
centralization and disagree only as to the appropriate choice for transferee district; however, "the Panel
has an institutional responsibility that goes beyond simply accommodating the particular wishes ofthe
parties," In re: Equinox Fitness Wage and Hour Empl't Practices Litig., 764 F. Supp. 2d 1347, 1348
(l.P.M.L. 2011) (denying unopposed motion for centralization of two actions). Here, the Panel is not
persuaded that Section 1407 centralization is necessary for the convenience ofthe parties and witnesses
or for the just and efficient conduct of this litigation at this time.
The actions may share some factual questions regarding the common defendant's marketing
practices, but these questions do not appear complicated. Indeed, the parties have not convinced us that
any common factual questions are sufficiently complex or numerous to justify Section 1407 transfer at
this time. Cooperation among the parties and deference among the courts should minimize the
possibility of duplicative discovery and inconsistent pretrial rulings. See, e.g., In re: General Mills,
Inc., Yop/us Yogurt Prods. Mktg. and Sales Practices Litig., 716 F. Supp. 2d 1371 (lP.M.L. 2010)

• Judges Paul J. Barbadoro and Marjorie O. Rendell took no part in the decision of this matter.
I The parties have notified the Panel oftwo related actions pending, respectively, in the Northern
District of California and the District of New Jersey.

Case MDL No. 2248 Document 28 Filed 08/16/11 Page 2 of 3

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(denying motion for centralization of four actions pending in four districts); In re: DirectBuy, Inc.,
Mktg. and Sales Practices Litig., 682 F. Supp. 2d 1349, 1351 (J.P.M.L. 2010) (same).
IT IS THEREFORE ORDERED that the motion, pursuant to 28 U.S.C. § 1407, for
centralization of these three actions is denied.

PANEL ON MULTIDISTRICT LITIGATION

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John G. Heyburn II
Chairman
Kathryn H. Vratil
Frank C. Damrell, Jr.

w. Royal Furgeson, Jr.
Barbara S. Jones

Case MDL l\Jo. 2248 Document 28 Filed 08/16/11 Page 3 of 3

IN RE: NUTELLA MARKETING AND
SALES PRACTICES LITIGATION

SCHEDULE A

Southern District of California
Athena Hohenberg v. Ferrero U.S.A., Inc., C.A. No.3: 11-00205
Laura Rude-Barbato v. Ferrero U.S.A., Inc., C.A. No. 3:11-00249
District of New Jersey
Mamie Glover v. Ferrero USA, Inc., C.A. No. 3:11-01086

MDLNo.2248