RUDICH v. GERBER PRODUCTS COMPANY

Filing 14

OPINION. Signed by Judge Jose L. Linares on 5/8/12. (dc, )

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
JANNA THOMAS, an individual, on behalf
of herself and all others similarly situated,
Plaintiff(s)

Civil Action No.: 12-835 (JLL)

OPINION

V.

GERBER PRODUCTS COMPANY;
NESTLE USA, INC.
Defendants.
IRENE DOURDOULAKIS and JOVEN
JOSE, on behalf of themselves and all others
similarly situated,

Civil Action No.: 12-1098 (JLL)

Plaintiffs,
v.
GERBER PRODUCTS COMPANY d/b/a
NESTLE INFANT NUTRITION and
NESTLE USA, INC.,
Defendants.
JASMINE WALKER, individually and on
behalf of all others similarly situated,
Plaintiff(s),
V.

GERBER PRODUCTS COMPANY,
Defendant.

Civil Action No.: 12-1149 (JLL)

Civil Action No.: 12-1283 (iLL)

ANDREW RUDICH, individually and on
behalf of all others similarly situated,
Plaintiff(s),
V.

GERBER PRODUCTS COMPANY,
Defendant.
Civil Action No.: 12-1878 (JLL)

SABA SIDDIQI, an individual, on behalf of
herself and all others similarly situated,
Plaintiff(s),
v.
GERBER PRODUCTS COMPANY;
NESTLE USA, INC.,
Defendants.

This matter comes before the Court by way of: (1) an unopposed motion filed by
Plaintiffs Janna Thomas (“Thomas”), Irene Dourdoulakis (“Dourdoulakis”), Joven Jose (“Jose”),
Jasmine Walker (“Walker”), Andrew Rudich (“Rudich”), and Saba Siddiqi (“Siddiqi”)
(collectively, “Plaintiffs”) to consolidate the above captioned matters of Civ. Nos. 12-835
[Docket Entry No. 13]; 12-1098 [Docket Entry No. 12], 12-1149 [Docket Entry No. 13], 12-1283
[Docket Entry No. 9], and 12-1878 [Docket Entry No. 24] under the first-filed action of Civ. No.
12-835;’ (2) a motion to appoint interim class counsel over the consolidated action filed by

‘Since the Parties seek consolidation under Civ. No. 12-835, and since the complaints
filed in the above-captioned actions are almost identical, any citation to a complaint will be to the
Complaint of Plaintiff Thomas unless otherwise noted. Also, since the docketed motion practice
with regard to Plaintiffs’ Motion to Consolidate and Appoint Interim Class Counsel, Defendants’
Opposition and Plaintiffs’ Reply were filed under all five docket numbers, references to the
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Carella, Byrne, Cecchi, Olstein, Brody & Agnello (“Carella Byrne”); and (3) a cross-motion for
appointment of interim class counsel filed by the Law Offices of Ronald A. Marron, Esq. (“the
Marron firm”), attorneys for Plaintiffs Thomas and Siddiqi. The Court has considered the
submissions of the Parties in support of and in opposition to the instant motion, and decides the
motion on the papers pursuant to Fed. R. Civ. P. 78. For the reasons stated herein, Plaintiffs’
Motion to Consolidate the above-captioned matters is GRANTED. Carella Byrne’s Motion for
Appointment of Interim Class Counsel is also GRANTED, and the cross-motion filed by the Law
Offices of Ronald A. Marron, Esq. for appointment of interim class counsel is DENIED.
I. BACKGROUND

Plaintiffs filed five distinct consumer protection class action complaints asserting claims
related to the marketing of probiotic baby formula and baby food by Gerber Products Company
(“Gerber”) and Nestle USA, Inc. (“Nestle”), specifically with respect to the marketing of Gerber
DHA & Probiotic Single Grain Cereal, Good Start Gentle Formula, Good Start Protect Infant
Formula, Good Start 2 Gentle Formula, and Good Start 2 Protect Formula. (Compl., ¶ 8).
Generally, the complaints state that Defendants manufactured, labeled, marketed, distributed and
sold the above-listed products to the public at a premium over its regular, non-probiotic-based
cereals and formulas due to Defendants’ claims that the probiotic formula had health benefits
beyond basic nutrition, including supporting a healthy immune system, better brain and eye
development, and better digestive health. (Içj, ¶J 16-4 1).
Plaintiffs Dourdoulakis, Jose, Walker and Rudich filed their Motion to Consolidate the
above-captioned cases on February 13, 2012. [Docket Entry No. 13J. Defendants, while not
above-cited briefs cite to the briefs as filed in Civil No. 12-835 unless otherwise noted.
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opposing Plaintiffs’ Motion to Consolidate, filed their response to Plaintiffs’ Motion in order to
set out their concerns for proper case management given the multiple complaints, pending class
actions in California and Washington, and Carella Byrne’s proposal to establish an Executive
Committee and Liaison Counsel should it be appointed interim class counsel. [Docket Entry No.
15]. On April 23, 2012, Plaintiffs Thomas and Siddiqi filed their non-opposition to Plaintiffs’

Motion to Consolidate as well as a Cross-Motion for Appointment of the Marron firm as Interim
Counsel. [Docket Entry No. 16]. Plaintiffs filed their reply brief on April 30, 2012. [Docket
Entry No. 18].

II. LEGAL STANDARD
Pursuant to Fed. R. Civ. P. 42(a), a court may consolidate actions before it if said actions
“involve a common question of law or fact.” Fed. R. Civ. P. 42(a). The purpose of consolidation
is to “streamline and economize pretrial proceedings so as to avoid duplication of effort, and to
prevent conflicting outcomes in cases involving similar legal and factual issues.” In re TMI
Litig., 193 F.3d 613, 724 (3d Cir. 1999)(citation omitted). Consolidation is only a matter of
“convenience and economy in administration,” it does not “merge the suits into a single cause, or
change the rights of the parties, or make those who are parties in one suit parties in another.” jj
(citation omitted).
A court may also “designate interim counsel to act on behalf of a putative class before
determining whether to certify the action as a class action.” Fed. R. Civ. P. 23(g)(3). In so
designating, a Court looks to the factors as set out in Fed. R. Civ. P. 23(g)(1)(A) and (B), namely:
“(i) the work counsel has done in identifying or investigating potential claims in the action; (ii)
counsel’s experience in handling class actions, other complex litigation, and the types of claims

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asserted in the action; (ii) counsel’s knowledge of the applicable law; and (iv) the resources that
counsel will commit to representing the class”; the Court “may consider any other matter
pertinent to counsel’s ability to fairly and adequately represent the interests of the class.” Courts
apply the same Rule 23(g)(l) factors in choosing interim class counsel as they do in choosing
class counsel at the time of certification of the class. See, e.g., Waudby v. Verizon Wireless
Servs., LLC, 248 F.R.D. 173, 175-76 (D.N.J. 2008); In re Air Cargo Shipping Servs. Antitrust
Litig., 240 F.R.D. 56, 57 (E.D.N.Y. 2006).
III. DISCUSSION

The Court finds, and all Parties agree, that the complaints in the above-captioned matters
contain common questions of law and fact. (See, e.g., P1. Br., at 2-3; Defs. Opp’n, at 1; Cross
Mot. Br., at 1). All of the above actions were brought by purchasers of Gerber’s probiotic baby
products, and they all allege consumer fraud and other claims, raising substantially identical
issues that should be litigated together to best ensure economy in and the efficient administration
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of the proceedings.
The Court further finds that the factors weigh in favor of granting Carella Byrne’s Motion
for Appointment of Interim Class Counsel. While the Marron firm filed the first putative class
action against Gerber Products and Nestle, and has identified and investigated claims on behalf
of his clients in the Siddigi and Thomas actions, Carella Byrnes has identified and investigated

The Court notes that Defendants’ concern regarding the filing of one amended
complaint in the consolidated action was answered in Plaintiffs’ Reply Brief in which they stated
their intent to file a consolidated amended complaint once consolidation was granted by this
Court. ( PIs. Reply Br., at 2). Regarding the pending class actions filed against Defendants in
California and Washington, this Court lacks jurisdiction to order consolidation of any cases
pending in foreign jurisdictions. ($ç Defs. Opp’n Br., at 2).
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claims in its respective actions cited above, and has extensive experience in handli
ng class
actions and other complex litigation, including the types of claims asserted
in the abovecaptioned actions, favoring their appointment in this case. (Cross-Mot. Br., at 1; Pls.
Br., at 3
and Ex. A). In reviewing Carella Byrne’s firm resume, it is clear that Carella Byrne
has
sufficiently demonstrated its qualifications as experienced litigators in the area of class
action
and complex litigation. Specifically, Carella Byrne has extensive experience in class action
litigation dealing with consumer fraud (e.g., In re VytorinlZetia Marketing, Sales Practices and
Products Liability Litigation; In re: Mercedes-Benz Tele-Aid Contract Litigation; In re Virgin
Mobile USA IPO Litigation; The County of Monroe, Florida v. Priceline.com; Hertz Equipment
Rental LDW Litigation). Carella Byrne has also demonstrated knowledge of the applicable law
and of this Court’s local rules and procedures through extensive litigation in this Court, other
federal courts, and other state courts. Further, Carella Byrne have collaborated as class counsel
before, and its proposed inclusive leadership structure in coordinating Plaintiffs’ Counsel in an
Executive Committee, coupled with its broader base of resources than the Marron firm, favor a
Carella Byrne appointment. The resources counsel will commit to representing the
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class—including the significant financial and human resources available—is a factor satisfied
through the firms’ well-established, respected and experienced attorneys as well as their ability to
pool resources for a broad pool of putative class members.

($. PIs. Reply Br., at 4-5). The

Court is satisfied that Carella Byrne will work together with the Marron and other firms to
further the class’s interests and maximize their recovery.

The
3 Court takes note of Defendants’ concerns regarding case management and
negotiation with the Executive Committee (Defs. Opp’n Br., at 3).
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IV. CONCLUSION

For the reasons set forth above, Plaintiffs’ Motion to Consolidate the above-captioned
matters is GRANTED. The Court also grants Carella Byrne’s Motion for Appointment as
Interim Class Counsel, denying the Law Offices of Ronald A. Marron’s Cross-Motion for
Appointment as Interim Class Counsel. An appropriate Order accompanies this Opinion.

DATED: May

,

2

2012

Linares
UIfted States District Judge

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