Joiner v. Tween Brands, Inc.

Filing 29

ORDER DENYING TRANSFER re: pldg. (5 in MD/1:15-cv-01590, 8 in MDL No. 2646, 5 in MOE/4:15-cv-00833, 5 in OHS/2:15-cv-02238, 5 in PAE/2:15-cv-00724, 5 in PAE/2:15-cv-02712), ( 1 in MDL No. 2646) The motion to transfer, pursuant to 28 U.S.C. 1407, is DENIEDSigned by Judge Sarah S. Vance, Chair, PANEL ON MULTIDISTRICT LITIGATION, on 8/7/2015. Associated Cases: MDL No. 2646, MD/1:15-cv-01590, MOE/4:15-cv-00833, OHS/2:15-cv-02238, PAE/2:15-cv-00724, PAE/2:15-cv-02712 (LAH)

UNITED STATES JUDICIAL PANEL
on
MULTIDISTRICT LITIGATION

IN RE: TWEEN BRANDS, INC., MARKETING
AND SALES PRACTICES LITIGATION

MDL No. 2646

ORDER DENYING TRANSFER

Before the Panel:* Plaintiff in the Southern District of Ohio action (Kallay) moves under
28 U.S.C. § 1407 to centralize pretrial proceedings in this litigation in the Southern District of Ohio.
The litigation consists of five actions, listed on Schedule A, that challenge the advertising practices
of Justice Stores, a retail chain focused on selling fashionable clothes for girls ages 7 to 14. Since
plaintiffs filed this motion, the parties have notified the Panel of four potentially related actions filed
in various districts.
Plaintiffs in six actions or potential tag-along actions support centralization in the Southern
District of Ohio. Defendant Tween Brands, Inc. (Tween Brands) and its parent company Ascena
Retail Group, Inc. (Ascena) suggest centralization in the Eastern District of Pennsylvania, as do
plaintiffs in the Eastern District of Pennsylvania Mehigan action.
On the basis of the papers filed and the hearing session held, we conclude that centralization
is not necessary to serve the convenience of the parties and witnesses or further the just and efficient
conduct of this litigation. These actions unquestionably share some factual questions. Plaintiffs in
all actions allege that Justice stores advertised a sale (through signs, postcards, mailings, etc.) in
which the contents of its entire store was 40% off regular retail prices. Plaintiffs contend that “40%
off retail” was an illusory and deceptive offer because the store’s products were always 40% off.
We are not convinced that the common issue among the actions—whether a 40% off sale that
never ends is deceptive—is sufficiently complex to warrant creating an MDL. Centralization of
pretrial proceedings is unnecessary for such a factually straightforward marketing and sales practices
docket. Our decision to deny centralization here is analogous to our previous denial of centralization
in five dockets with claims arising from the defendants’ inclusion of cardholder ZIP codes on
customer retail receipts. See In re: Best Buy Co., Inc., California Song-Beverly Credit Card Act
Litigation, 804 F. Supp. 2d 1376, 1379 (J.P.M.L. 2011) (MDL Nos. 2256, 2259, 2260, 2267 and
2268) (denying centralization of “relatively straightforward” claims that could “proceed just as
*

Certain Panel members who could be members of the putative classes in this docket have
renounced their participation in these classes and have participated in the decision.

-2efficiently without centralization”). Similarly, we also declined to centralize cases involving
straightforward deceptive advertising claims regarding various food products.2
Further underscoring the lack of need for an MDL proceeding, plaintiffs in certain Eastern
District of Pennsylvania actions and defendants reported that they have reached a settlement in
principle on behalf of a putative nationwide class of consumers. At oral argument, moving plaintiff
suggested that the term sheet regarding the purported settlement was inadequate and that, at a
minimum, more discovery was needed. Moving plaintiff also argued that the settling parties did not
share sufficient information with them about the settlement. Assuming the settlement in principle
is executed, plaintiffs presumably can raise these and any other concerns they may have at a fairness
hearing regarding the proposed settlement.3
In these circumstances, to the extent that there is any possibility of duplicative discovery or
inconsistent pretrial rulings, voluntary cooperation and coordination among the parties and the
involved courts is preferable to centralization. See, e.g., In re: Eli Lilly & Co. (Cephalexin
Monohydrate) Patent Litig., 446 F. Supp. 242, 244 (J.P.M.L. 1978); see also Manual for Complex
Litigation, Fourth, § 20.14 (2004).

2

See In re: Nutella Mktg. and Sales Pracs. Litig., 804 F. Supp. 2d at 1375 (denying
centralization of claims that Nutella was rendered “unnatural” because it contained sugar); In re:
Skinnygirl Margarita Beverage Mktg. & Sales Pracs. Litig., 829 F. Supp. 2d 1380, 1381 (J.P.M.L.
2011) (denying centralization of claims that margarita mix containing sodium benzoate was
deceptively advertised as “all natural”); In re: Kashi Co. Mktg. & Sales Pracs. Litig., 959 F. Supp.
2d 1357, 1358 (J.P.M.L. 2013) (denying centralization of cases alleging that defendant misleadingly
listed “evaporated cane juice” or “evaporated cane juice crystals” on the labels of certain products).
3

See In re DirectBuy, Inc., Mktg. & Sales Practices Litig., 682 F. Supp. 2d 1349, 1350
(J.P.M.L. 2010) (“We do not consider the DirectBuy defendants’ apparent preference to negotiate
with certain plaintiffs’ counsel over counsel for other plaintiffs as particularly relevant to our primary
statutory inquiry ... if (as some plaintiffs presume) plaintiffs in one or more of the actions reach a
nationwide settlement with the DirectBuy defendants, plaintiffs in the non-settling actions should
reasonably anticipate an opportunity to object to the proposed settlement at any fairness hearing
regarding the proposed settlement.”).

-3IT IS THEREFORE ORDERED that the motion for centralization of these actions is denied.

PANEL 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

IN RE: TWEEN BRANDS, INC., MARKETING
AND SALES PRACTICES LITIGATION

SCHEDULE A
District of Maryland
JOINER v. TWEEN BRANDS, INC., C.A. No. 1:15!01590
Eastern District of Missouri
GALLAGHER v. TWEEN BRANDS, INC., C.A. No. 4:15!00833
Southern District of Ohio
KALLAY v. TWEEN BRANDS, INC., C.A. No. 2:15!02238
Eastern District of Pennsylvania
MEHIGAN, ET AL. v. ASCENA RETAIL GROUP, INC., ET AL.,
C.A. No. 2:15!00724
TRAYNOR!LUFKIN, ET AL. v. TWEEN BRANDS, INC.,
C.A. No. 2:15!02712

MDL No. 2646