Marsh v. McCormick & Company, Inc.

Filing 28

TRANSFER ORDER re: pldg. ( 1 in MDL No. 2665) Transferring 4 action(s) to Judge Judge Ellen Segal Huvelle in the D. District of Columbia.Signed by Judge Sarah S. Vance, Chair, PANEL ON MULTIDISTRICT LITIGATION, on 12/8/2015. Associated Cases: MDL No. 2665, CAE/2:15-cv-01625, CAS/3:15-cv-01648, MN/0:15-cv-02688, NYE/2:15-cv-03454 (TL)

UNITED STATES JUDICIAL PANEL
on
MULTIDISTRICT LITIGATION

IN RE: MCCORMICK & COMPANY, INC.,
PEPPER PRODUCTS MARKETING AND
SALES PRACTICES LITIGATION

MDL No. 2665

TRANSFER ORDER

Before the Panel:* Defendant McCormick & Co., Inc. (McCormick), moves under 28 U.S.C.
§ 1407 to centralize pretrial proceedings in this litigation in the District of Maryland or, alternatively,
the District of the District of Columbia.1 McCormick is reportedly the largest spice distributor in
the world, with over 20% of the global seasonings and spices market. This litigation involves the
alleged slack-filling of McCormick black pepper products and consists of four actions pending in
four districts: a competitor action pending in the District of Minnesota and three putative class
actions brought on behalf of a New York class of purchasers of McCormick black pepper products
and two nationwide classes of similar purchasers. These actions are listed on Schedule A. Since the
filing of the motion, nine additional actions were filed in various districts across the country.2
The parties’ positions on McCormick’s motion vary greatly. Competitor plaintiff Watkins,
Inc., does not oppose centralization in the District of Minnesota. Plaintiffs in three potential
tag-along actions support centralization in the District of the District of Columbia. Plaintiffs in a
Northern District of Illinois potential tag-along action (Vladimirsky) support centralization in the
Northern District of Illinois. Wal-Mart Stores, Inc., a defendant in Vladimirsky, supports
centralization in the Eastern District of Missouri or, alternatively, the District of Maryland or the
District of the District of Columbia.3 Plaintiffs in three actions and a potential tag-along action

*

Judges Marjorie O. Rendell, Lewis A. Kaplan and Ellen Segal Huvelle took no part in the
decision of this matter. Additionally, certain Panel members who could be members of the putative
classes in this litigation have renounced their participation in these classes and have participated in
this decision.
1

Defendant’s motion initially included a Central District of California action (Esparza),
which was dismissed voluntarily. Plaintiff Esparza later joined the Southern District of California
Bunting action.
2

These actions, and any other related actions, are potential tag-along actions. See Panel
Rules 1.1(h), 7.1 and 7.2.
3

Wal-Mart also requests separation and remand of the antitrust claim alleged against it in
(continued...)

-2opposed centralization in their briefs and, alternatively, suggested centralization in the Southern
District of California. At oral argument, counsel for McCormick stated that no plaintiffs now oppose
centralization. Plaintiff in the Eastern District of California action initially supported the District
of Minnesota as the transferee forum but later changed her position to support the District of the
District of Columbia. Finally, plaintiff in a Southern District of Florida potential tag-along action
support centralization of only the cases brought by consumers (i.e., excluding the District of
Minnesota Watkins competitor action) in the Southern District of California.
After considering the argument of counsel, we find that the actions in this litigation involve
common questions of fact, and that centralization in the District of the District of Columbia will
serve the convenience of the parties and witnesses and promote the just and efficient conduct of the
litigation. This litigation involves McCormick branded ground black pepper tins and whole black
pepper “grinders.” Some actions also involve store-brand pepper tins made by McCormick. Since
early 2015, McCormick is alleged to have reduced the volume of pepper by 25%, but kept the size
of non-transparent tins the same. The resulting “slack-filled” tins4 allegedly appeared to have more
volume when compared to McCormick’s competitors’ fully-filled tins. These actions share factual
questions about the propriety of McCormick’s pricing and packaging of its pepper products under
various federal and state laws. Plaintiffs allege that, although the weights of the product were
accurately disclosed on the product labels, McCormick has wrongfully “slack-filled” its black pepper
containers and that consumers have either been confused or deceived into believing that they have
bought more pepper than they have actually received. Centralization will eliminate duplicative
discovery; avoid inconsistent pretrial rulings, particularly on class certification; and conserve the
resources of the parties, their counsel and the judiciary.
Plaintiffs in a Southern District of Florida potential tag-along action suggest that we exclude
the District of Minnesota Watkins competitor action and centralize only cases brought by consumers.
We do not see the litigation, taken as a whole, as benefitting from the exclusion of Watkins from the
MDL, given its clear factual overlap with the other cases. To the extent that Watkins involves some
unique issues, the transferee judge has the discretion to handle those issues through the use of
appropriate pretrial devices, such as separate tracks for discovery and motion practice. See, e.g., In
re: Countrywide Fin. Corp. Mortgage-Backed Sec. Litig., 812 F. Supp. 2d 1380, 1383 (J.P.M.L.
2011). In addition, the transferee judge, whenever she deems appropriate, may recommend Section
1407 remand of Watkins or any claims in Watkins in advance of other actions or claims. See In re:
ClassicStar Mare Lease Litig., 528 F. Supp. 2d 1345, 1347 (J.P.M.L. 2007).

3

(...continued)
Vladimirsky. McCormick opposes this request and urges transfer of all claims. Because this action
is not before us, we need not reach this issue at this time. We will instead address the question of
the inclusion of this case in the conditional transfer order process. See Panel Rule 7.1.
4

Plaintiffs assert that McCormick’s non-transparent metal tins have remained the same for
decades, and competitors adjusted their products to match these tins.

-3We are persuaded that the District of the District of Columbia is an appropriate transferee
district for this litigation. McCormick is based near Baltimore, Maryland, so relevant documents and
witnesses likely will be found there. The District of District of Columbia, where a potential tagalong action is pending, offers a relatively convenient and accessible transferee forum for all parties.
By assigning this litigation to Judge Ellen Segal Huvelle, we are selecting a jurist well-versed in the
nuances of complex and multidistrict litigation to steer this controversy on a prudent course.
IT IS THEREFORE ORDERED that the actions listed on Schedule A are transferred to the
District of the District of Columbia and, with the consent of that court, assigned to the Honorable
Ellen Segal Huvelle for coordinated or consolidated pretrial proceedings.

PANEL ON MULTIDISTRICT LITIGATION

Sarah S. Vance
Chair
Charles R. Breyer
Catherine D. Perry

R. David Proctor

IN RE: MCCORMICK & COMPANY, INC.,
PEPPER PRODUCTS MARKETING AND
SALES PRACTICES LITIGATION

MDL No. 2665

SCHEDULE A

Eastern District of California
MARSH v. MCCORMICK & COMPANY, INC., C.A. No. 2:15!01625
Southern District of California
BUNTING, ET AL. v. MCCORMICK & COMPANY, INC., C.A. No. 3:15!01648
District of Minnesota
WATKINS INCORPORATED v. MCCORMICK AND COMPANY, INC.,
C.A. No. 0:15!02688
Eastern District of New York
DUPLER v. MCCORMICK & COMPANY, INC., C.A. No. 2:15!03454