Cindy Bustamante et al v. Wal-Mart Stores, Inc. et al

Filing 18

TRANSFER ORDER (COMBINED) re: pldg. ( 1 in MDL No. 2708) This MDL has been combined with, and the actions transferred to MDL-2705.Signed by Judge Sarah S. Vance, Chair, PANEL ON MULTIDISTRICT LITIGATION, on 6/2/2016. Associated Cases: MDL No. 2708, CAC/2:16-cv-01265, FLN/1:16-cv-00050, ILN/1:16-cv-02687, ILS/3:16-cv-00208, MN/0:16-cv-00498, MOE/4:16-cv-00265, NYS/7:16-cv-01377, NYS/7:16-cv-01571 (TB)

UNITED STATES JUDICIAL PANEL
on
MULTIDISTRICT LITIGATION

IN RE: 100% GRATED PARMESAN CHEESE
MARKETING AND SALES PRACTICES LITIGATION

MDL No. 2705

IN RE: KRAFT 100% GRATED PARMESAN CHEESE
MARKETING AND SALES PRACTICES LITIGATION

MDL No. 2707

IN RE: WAL-MART GREAT VALUE 100% GRATED
PARMESAN CHEESE MARKETING AND SALES
PRACTICES LITIGATION

MDL No. 2708

TRANSFER ORDER
Before the Panel:* Before the Panel are three dockets involving allegations that the labeling
and marketing of certain parmesan cheese products as “100%” grated parmesan cheese is false and
misleading because the products allegedly contain filler – mainly, a food additive known as
cellulose.1 The litigation stems from a news article published in February 2016, allegedly reporting
that independent laboratory testing or other sources established the presence of significant amounts
of cellulose in several brands, including Kraft 100% Grated Parmesan Cheese, Wal-Mart Great
Value 100% Grated Parmesan Cheese, Target Market Pantry Parmesan 100% Grated Cheese, and
Essential Everyday 100% Grated Parmesan Cheese (allegedly, a product of SuperValu and
Albertsons).
In MDL No. 2705, plaintiffs in eight actions move under 28 U.S.C. § 1407 to centralize all
actions involving the alleged mislabeling of any 100% grated parmesan cheese product in the Eastern
District of Missouri. They request that the MDL encompass the actions in their initial motion
concerning Kraft and Wal-Mart, as well as potential tag-along actions involving Target, SuperValu,
Albertsons, and the ICCO-Cheese Company. In MDL No. 2707 and 2708, plaintiffs in two actions,
through their shared counsel, move for centralization of the actions into separate MDLs, grouped by

*

Judge Lewis A. Kaplan, Judge Marjorie O. Rendell, and Judge Catherine D. Perry 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

The defendants in the actions on the motions are the Kraft Heinz Company and Kraft Heinz
Foods Company (Kraft) and Wal-Mart Stores, Inc., and Wal-Mart Stores East, L.P. (“Wal-Mart”).
Defendants in the potential tag-along actions are: Target Corporation; ICCO-Cheese Company, Inc.;
SUPERVALU, Inc. (SuperValu); Albertsons Companies, LLC (Albertsons); and Safeway, Inc.

-2the primary corporate defendant but assigned to the same district, the Southern District of New York.
Specifically, they ask for centralization of the Kraft actions in MDL No. 2707, the Wal-Mart actions
in MDL No. 2708, and establishment of two separate MDLs for the potential tag-along actions – one
for Target and one for SuperValu and Albertsons. The litigation currently consists of 16 actions
pending in 9 districts, as listed on the attached schedules. The Panel has been notified of 33 potential
tag-along actions in nine additional districts.2
All responding parties but one support centralization in some form.3 The principal areas of
disagreement are the scope of each MDL (a single, multi-product MDL or separate MDLs grouped
by the product or primary corporate defendant) and the proposed transferee district. Defendants
Wal-Mart, Target, SuperValu, Albertsons, and the ICCO-Cheese Company support centralization
of all actions in a single, multi-product MDL. Wal-Mart requests the Eastern District of Missouri;
Target and ICCO-Cheese request the District of Maryland and, alternatively, the Eastern District of
Missouri; and SuperValu and Albertsons request the District of Minnesota. Defendant Kraft
supports a Kraft-only MDL in the Northern District of Illinois and separate MDLs for the other
defendants, arguing that industry-wide centralization is not appropriate. Plaintiffs in a total of 19
actions support centralization of all actions in a single, multi-product MDL, while plaintiffs in 14
actions request separate MDLs grouped by the product or primary corporate defendant. Most of the
proponents of separate MDLs request assignment of the MDLs to the same transferee judge.
Plaintiffs variously propose the Eastern District of Missouri, the Northern District of Illinois, the
Southern District of New York, the District of Minnesota, the Western District of Pennsylvania, and
the Southern District of Florida.
We find that common factual questions arise from plaintiffs’ allegations that defendants
deceived consumers by marketing products containing cellulose as “100%” grated parmesan cheese.
Common factual issues will include the underlying laboratory testing, consumer perception of the
labeling representation, the alleged impact on pricing, and ICCO’s alleged role as a common supplier
for Wal-Mart and other stores selling house brand “100%” grated parmesan cheese products.
Additionally, all actions raise the common legal issue of the applicability and impact of federal
regulations governing the labeling and contents of grated parmesan cheese products. There is little
dispute that the actions overlap on at least these issues.
The parties’ arguments focus on whether creation of a single, multi-product MDL or separate
MDLs grouped by product or defendant will achieve greater efficiencies. The parties supporting

2

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

A pro se plaintiff in one potential tag-along action (Greenstein) filed a letter the week after
the Panel hearing expressing concerns over the status of his action and requesting an opportunity to
present briefing. Because Greenstein is not on the motions, it is not squarely before us. Plaintiff will
have an opportunity to state his position in response to a conditional transfer order covering the
action, if issued. See Panel Rule 7.1.

-3creation of separate MDLs argue that this approach is necessary because (1) each defendant’s
labeling, marketing, manufacturing, and distribution practices will raise unique factual issues; (2)
product-specific disputes can be more efficiently presented and resolved in separate dockets; and (3)
defendants are direct competitors and thus, will need to protect against the disclosure of confidential
manufacturing, marketing, and other information.
In response, the parties supporting a single, multi-product MDL argue that (1) all actions
stem from the same news article and independent laboratory testing, which will result in common
discovery; (2) the common issues regarding the nearly identical labeling will result in similar
discovery and expert reports, including with respect to consumer perception and pricing; (3)
overlapping discovery and motions practice concerning the validity of the independent laboratory
testing will be significant, making centralization necessary to avoid inconsistent Daubert rulings;
(4) a common supplier – ICCO-Cheese – undisputedly was the source of the Wal-Mart and Target
products and potentially other house brands, making the creation of separate MDLs inefficient and
impracticable; and (5) retailer-specific factual issues and protection of confidential proprietary
information can be addressed by the entry of appropriate protective orders for each defendant. They
also note that there are several actions (including potential tag-alongs) that assert claims against two
or more unaffiliated defendants, which would be difficult to sever and transfer into separate MDLs.4
Indeed, nearly all parties agree that the actions at issue should be centralized before the same
transferee judge, even if there are separate MDLs, because the proposed statewide and nationwide
classes overlap substantially and present competing class definitions.
In our judgment, a single, multi-product MDL 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 when, as here, there is significant overlap in the central factual
issues, parties, and claims, we find that creation of a single MDL is warranted.5 A single MDL is
the most appropriate vehicle for resolving defendants’ challenges to the validity of the laboratory
testing at issue, the anticipated common third-party discovery, discovery of any common suppliers,
and management of the competing putative classes. Although the advocates of separate MDLs have
identified certain product-specific issues, Section 1407 does not require a complete identity of factual
issues or parties as a prerequisite to transfer, and the presence of additional facts is not significant
when the actions arise from a common factual core.6 We are confident that the transferee judge can
accommodate any issues involving the different products and defendants, including confidentiality

4

To date, the Panel has been notified of six potential tag-along actions involving two or
more unaffiliated defendants.
5

See, e.g., In re: Walgreens Herbal Supplements Mktg. and Sales Practices Litg. 109 F.
Supp. 3d 1373 (J.P.M.L. 2015) (centralizing dockets involving four different brands of herbal
supplements in a single MDL because of “significant overlap in the central factual issues, parties,
and claims”; common expert discovery; and management of competing putative classes).
6

See In re: Auto Body Shop Antitrust Litig., 37 F. Supp. 3d 1388, 1390 (J.P.M.L. 2014).

-4and defendant-specific resolutions, in a manner that guarantees the just and efficient resolution of
all cases.
We therefore 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. Centralization will eliminate duplicative discovery;
prevent inconsistent pretrial rulings, including with respect to class certification and Daubert
motions; and conserve the resources of the parties, their counsel, and the judiciary.
We are persuaded that the Northern District of Illinois is the appropriate transferee district
for this litigation. This district provides a convenient and accessible forum for actions filed
throughout the country regarding products sold nationwide. Defendant Kraft and plaintiffs in ten
actions support this district, where a significant number of actions are pending. Kraft represents that
its relevant headquarters office is located in this district, and that the majority of its documents and
witnesses are located there. This district also is centrally located relative to defendant Wal-Mart,
which has its headquarters in Arkansas, the defendants in the potential tag-along actions, and the
geographically dispersed plaintiffs. Finally, centralization in this district allows us to assign this
litigation to Judge Gary Feinerman, an able and experienced jurist who has not had the opportunity
to preside over an MDL. Judge Feinerman currently presides over one potential tag-along action
involving Kraft, Target, and SuperValu. 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, and C, 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 Gary Feinerman for coordinated or
consolidated pretrial proceedings under MDL No. 2705.
IT IS FURTHER ORDERED that the motions in MDL No. 2707 and 2708 are terminated.

PANEL ON MULTIDISTRICT LITIGATION

Sarah S. Vance
Chair
Charles A. Breyer
R. David Proctor

Ellen Segal Huvelle

IN RE: 100% GRATED PARMESAN CHEESE
MARKETING AND SALES PRACTICES LITIGATION

MDL No. 2705

SCHEDULE A

Central District of California
BUSTAMANTE, ET AL. v. WAL-MART STORES, INC., ET AL., C.A. No. 2:16-01265
Northern District of California
LEWIN v. KRAFT HEINZ FOODS COMPANY, C.A. No. 3:16-00823
Northern District of Florida
BROWN v. WAL-MART STORES, INC., C.A. No. 1:16-00050
GREENE v. KRAFT HEINZ FOOD COMPANY, C.A. No. 3:16-00077
Northern District of Illinois
AVERHART v. KRAFT HEINZ FOODS COMPANY, C.A. No. 1:16-02626
Southern District of Illinois
SCHULZE v. WAL-MART STORES, INC., C.A. No. 3:16-00208
MATECKI v. KRAFT HEINZ FOOD COMPANY, C.A. No. 3:16-00209
District of Minnesota
JACKSON v. WAL-MART STORES, INC., C.A. No. 0:16-00498
MORENO v. KRAFT HEINZ FOODS COMPANY, C.A. No. 0:16-00499
Eastern District of Missouri
EVANS v. KRAFT HEINZ FOOD COMPANY, C.A. No. 4:16-00257
HARWELL v. WAL-MART STORES, INC., C.A. No. 4:16-00265
Eastern District of New York
ADER, ET AL. v. KRAFT HEINZ FOODS COMPANY, C.A. No. 2:16-00963
Southern District of New York
MOSCHETTA v. WAL-MART STORES, INC., C.A. No. 7:16-01377

IN RE: KRAFT 100% GRATED PARMESAN CHEESE
MARKETING AND SALES PRACTICES LITIGATION

MDL No. 2707

SCHEDULE B

Northern District of California
LEWIN v. KRAFT HEINZ FOODS COMPANY, C.A. No. 3:16-00823
Northern District of Florida
GREENE v. KRAFT HEINZ FOOD COMPANY, C.A. No. 3:16-00077
Northern District of Illinois
AVERHART v. KRAFT HEINZ FOODS COMPANY, C.A. No. 1:16-02626
HECHMER, ET AL. v. KRAFT HEINZ FOODS COMPANY, ET AL., C.A. No. 1:16-02687
Southern District of Illinois
MATECKI v. KRAFT HEINZ FOOD COMPANY, C.A. No. 3:16-00209
District of Minnesota
MORENO v. KRAFT HEINZ FOODS COMPANY, C.A. No. 0:16-00499
Eastern District of Missouri
EVANS v. KRAFT HEINZ FOOD COMPANY, C.A. No. 4:16-00257
Eastern District of New York
ADER, ET AL. v. KRAFT HEINZ FOODS COMPANY, C.A. No. 2:16-00963
Southern District of New York
QUINN, ET AL. v. THE KRAFT HEINZ COMPANY, C.A. No. 7:16-01471

IN RE: WAL-MART GREAT VALUE 100% GRATED
PARMESAN CHEESE MARKETING AND SALES
PRACTICES LITIGATION

MDL No. 2708

SCHEDULE C

Central District of California
BUSTAMANTE, ET AL. v. WAL-MART STORES, INC., ET AL., C.A. No. 2:16-01265
Northern District of Florida
BROWN v. WAL-MART STORES, INC., C.A. No. 1:16-00050
Northern District of Illinois
HECHMER, ET AL. v. KRAFT HEINZ FOODS COMPANY, ET AL., C.A. No. 1:16-02687
Southern District of Illinois
SCHULZE v. WAL-MART STORES, INC., C.A. No. 3:16-00208
District of Minnesota
JACKSON v. WAL-MART STORES, INC., C.A. No. 0:16-00498
Eastern District of Missouri
HARWELL v. WAL-MART STORES, INC., C.A. No. 4:16-00265
Southern District of New York
MOSCHETTA v. WAL-MART STORES, INC., C.A. No. 7:16-01377
DUCORSKY, ET AL. v. WAL-MART STORES, INC., C.A. No. 7:16-01571