Charles Robbins v. Gerber Products Company et al

Filing 33

ORDER DENYING TRANSFER re: pldg. (26 in CAC/2:21-cv-01457, 21 in CAN/4:21-cv-00913, 18 in CAN/4:21-cv-01113, 34 in ILN/1:21-cv-00719, 33 in KS/2:21-cv-02096, 125 in MDL No. 2997, 20 in M OW/4:21-cv-00129, 21 in NJ/1:21-cv-02417, 20 in NJ/2:21-cv-01977, 20 in NJ/2:21-cv-02516, 38 in NYE/1:21-cv-00870, 23 in NYE/2:21-cv-00758, 20 in NYE/2:21-cv-00805, 22 in NYE/2:21-cv-00884, 22 in NYE/2:21-cv-00938, 24 in NYE/2:21-cv-00944, 23 in NYE/ 2:21-cv-00970, 21 in NYE/2:21-cv-01045, 25 in NYE/2:21-cv-01062, 21 in NYE/2:21-cv-01067, 21 in NYE/2:21-cv-01076, 34 in NYE/2:21-cv-01118, 23 in NYN/1:21-cv-00133, 24 in NYN/1:21-cv-00167, 25 in NYN/1:21-cv-00183, 25 in NYN/1:21-cv-00186, 23 in NYN/ 1:21-cv-00200, 22 in NYN/1:21-cv-00213, 21 in NYN/1:21-cv-00227, 25 in NYN/1:21-cv-00229, 22 in NYN/1:21-cv-00258, 23 in NYS/1:21-cv-01217, 20 in NYS/1:21-cv-01271, 20 in NYS/1:21-cv-01473, 23 in NYS/1:21-cv-01534, 22 in NYS/1:21-cv-01882, 21 in VAE/1:21-cv-00269, 19 in VAE/1:21-cv-00277), ( 1 in MDL No. 2997) The motion to transfer, pursuant to 28 U.S.C. 1407, is DENIEDSigned by Judge Karen K. Caldwell, Chair, PANEL ON MULTIDISTRICT LITIGATION, on 6/7/2021. Associated Cases: MDL No. 2997 et al. (LH)

UNITED STATES JUDICIAL PANEL
on
MULTIDISTRICT LITIGATION
IN RE: BABY FOOD MARKETING, SALES PRACTICES
AND PRODUCTS LIABILITY LITIGATION

MDL No. 2997

ORDER DENYING TRANSFER
Before the Panel:* Plaintiffs in the Eastern District of New York Albano action move
under 28 U.S.C. § 1407 to centralize this litigation in the Eastern District of New York. This
litigation consists of 38 actions pending in ten districts, as listed on Schedule A. 1 These actions
allege that manufacturers of baby foods knowingly sold baby food products containing heavy
metals (specifically, arsenic, lead, cadmium, and mercury), yet marketed these products as healthy
and as not containing harmful ingredients. Movants seeks centralization on an industry-wide basis,
with the proposed MDL incorporating actions against all major baby food manufacturers. Since
the filing of the motion, the Panel has been notified of 48 related federal actions pending in twelve
districts.
The motion elicited numerous and varied responses. Plaintiffs in four actions on the motion
and six related actions support industry-wide centralization. In addition to the Eastern District of
New York, plaintiffs in three of these actions suggest either the Northern District of California or
the Southern District of Florida as the transferee district. Plaintiffs in 23 actions on the motion
and sixteen related actions oppose centralization on an industry-wide basis. In the alternative,
various of these plaintiffs propose the Northern District of California, the District of New Jersey,
and the Eastern District of New York as the transferee forum.
Plaintiffs in ten actions on the motion and eleven related actions request or alternatively
suggest centralization on a defendant-by-defendant basis. These plaintiffs generally request that
the defendant-specific MDLs be centralized in the district where the particular defendant is
located, though there is some disagreement among the parties as to what districts those are.
Plaintiffs propose centralization of actions naming Beech-Nut Nutrition Company (Beech-Nut) in
the Northern District of New York; actions naming Campbell Soup Company and Plum, PBC
(collectively, Plum) in the District of New Jersey; actions naming Gerber Products Company
(Gerber) in either the District of New Jersey or the Eastern District of Virginia; actions naming
* One or more 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 motion initially listed 43 actions, five of which were later dismissed voluntarily by plaintiffs.
At least two of those actions appear to have been re-filed in different districts.

-2The Hain Celestial Group, Inc. (Hain) in the Eastern District of New York; and actions naming
Nurture, Inc., in either the Eastern or Southern Districts of New York.
Defendants Beech-Nut, Plum, Gerber, Hain, Nurture, and Sprout Foods, Inc., oppose any
centralization, whether on an industry-wide or defendant-specific basis. Alternatively, if the Panel
were to centralize this litigation, these defendants propose the District of New Jersey, the Northern
District of New York, and the Southern District of New York as the transferee district. Walmart
Inc. also opposes centralization and, alternatively, requests that the two actions in which it is named
as a defendant be excluded from any MDL. Safeway, Inc., a defendant in one related action, takes
no position on centralization, but suggests that any MDL should be centralized in New Jersey or
New York.
In addition, plaintiffs in two related actions pending in the Northern District of California
and asserting personal injury claims oppose inclusion of personal injury cases in any MDL. These
plaintiffs alternatively suggest the Northern District of California as the transferee district.
Plaintiffs in eighteen actions agree that personal injury claims should be excluded from any MDL,
as do the responding defendants. Plaintiffs in five actions, as well as defendants, similarly suggest
that the two actions asserting industry-wide civil RICO claims be excluded from any MDL.
On the basis of the papers filed and the hearing session held, 2 we conclude that
centralization is not necessary for the convenience of the parties and witnesses or to further the
just and efficient conduct of the litigation. At a general level, these actions are similar. All
plaintiffs allege that defendants knowingly sold baby food products containing heavy metals and
did not disclose this in their marketing. It is not disputed, though, that each defendant
manufactures, markets, and distributes its own baby food products subject to different
manufacturing processes, suppliers, and quality control procedures. The claims against each
defendant thus are likely to rise or fall on facts specific to that defendant, such as the amount of
heavy metals in its products, the results of its internal testing, if any, and its marketing strategies.
Much of the discovery and pretrial practice will be defendant-specific. Plaintiffs overwhelmingly
do not assert claims of an industry-wide conspiracy or coordination between defendants. 3 And,
although the actions were prompted by a common Congressional investigation, that investigation
relied primarily on internal testing conducted by defendants and subpoenaed by the House
2

In light of the concerns about the spread of the COVID-19 virus (coronavirus), the Panel heard
oral argument by videoconference at its hearing session of May 27, 2021. See Suppl. Notice of
Hearing Session, MDL No. 2997 (J.P.M.L. May 10, 2021), ECF No. 194.
3

The exceptions are the two actions asserting civil RICO claims. These claims are somewhat
tangential to the marketing claims asserted by most of the other actions, as they relate to allegations
that defendants used an industry group known as the Baby Food Counsel to delay adoption of
regulatory standards for baby foods and undermine recent studies regarding the presence of heavy
metals in baby foods. These claims are sufficiently distinct, and will require unique discovery and
pretrial motion practice, that they do not weigh heavily in favor of industry-wide centralization.

-3Committee. Thus, it seems unlikely that the common Congressional investigation will yield
significant common discovery.
We have been cautious when considering industry-wide centralization. See, e.g., In re
Secondary Ticket Mkt. Refund Litig., 481 F. Supp. 3d 1345, 1346 (J.P.M.L. 2020) (observing that
the Panel is “typically skeptical of requests to centralize claims filed against multiple defendants
who are competitors in a single MDL because it often will not promote judicial efficiency or serve
the convenience of the parties and witnesses”). Here, 73 of the 86 related actions in this litigation
are brought against a single defendant. Of the thirteen multi-defendant actions, two are personal
injury actions, which the parties generally agree should be excluded from the MDL, and two assert
civil RICO claims, which will involve unique discovery and pretrial practice. The other nine multidefendant actions are subject to pending or anticipated motions to sever and transfer. 4 Tellingly,
centralization is opposed by plaintiffs in 39 actions (representing several different plaintiffs’
attorney groups) and all defendants. Given the relatively minimal number of common factual
questions, the potential for a multi-defendant MDL to introduce added complexity to this litigation,
and the strong opposition of numerous plaintiffs and defendants, we are not persuaded that
industry-wide centralization is appropriate.
Nor are we convinced that defendant-specific centralization is warranted at this time. We
have emphasized that “centralization under Section 1407 should be the last solution after
considered review of all other options.” In re Best Buy Co., Inc., Cal. Song-Beverly Credit Card
Act Litig., 804 F. Supp. 2d 1376, 1378 (J.P.M.L. 2011). Most of the 73 defendant-specific actions
in this litigation have been filed or transferred to the district where that defendant is (or was)
headquartered. 5 Several actions either have been transferred by stipulation or voluntarily
4

Both the Northern District of California and the Eastern District of New York, in their orders
consolidating the Plum and Hain actions, respectively, excluded multi-defendant and personal
injury actions from the consolidated litigations.
5

For instance, all fourteen actions against Beech-Nut have been consolidated in the Northern
District of New York. Seven actions against Plum are pending in the Northern District of
California (where Plum, PBC, was headquartered) and four actions are pending in the District of
New Jersey (where Campbell Soup is located). The Plum actions in California have been
consolidated, and defendants’ motion to transfer those actions to New Jersey is pending. With
respect to Gerber, eight actions are pending in the District of New Jersey (where Gerber was
headquartered until recently), eight actions are in the Eastern District of Virginia (where Gerber is
now headquartered), and one action is pending in the Southern District of Florida. The Gerber
actions in New Jersey and Virginia have been consolidated and cross-motions to transfer the
actions in each district to the other district are pending. As for Hain, fifteen actions are pending
in the Eastern District of New York (where Hain is based) and one action each is pending in the
Northern District of California and the Western District of Missouri. Nine of the actions against
Nurture are pending in the Southern District of New York, with one action each pending in the
District of Montana and the Northern District of Ohio. Sprout Foods is named in only two actions,
while Walmart is a defendant in a single action in California.

-4dismissed and re-filed in the defendant’s home district. Several motions to transfer various actions
to defendant’s home district are pending, as are several motions to sever and transfer multidefendant actions. We have repeatedly observed that transfer under Section 1404 or the first-tofile doctrine is preferable to Section 1407 centralization. See, e.g., In re Gerber Probiotic Prods.
Mktg. & Sales Practices Litig., 899 F. Supp. 2d 1378, 1380–81 (J.P.M.L. 2012) (discussing
advantages of Section 1404 transfer over Section 1407 centralization). We believe it is better to
allow the parties’ attempts to self-organize play out before centralizing any part of this litigation.
If the actions against a particular defendant are not consolidated in a single district, and if
alternative means of informal coordination and cooperation are ineffective with respect to any
actions that remain outside the defendants’ home district, the parties at that time may pursue a
more focused request for centralization.
denied.

IT IS THEREFORE ORDERED that the motion for centralization of these actions is

PANEL ON MULTIDISTRICT LITIGATION

Karen K. Caldwell
Chair
Catherine D. Perry
Matthew F. Kennelly
Roger T. Benitez

Nathaniel M. Gorton
David C. Norton
Dale A. Kimball

IN RE: BABY FOOD MARKETING, SALES PRACTICES
AND PRODUCTS LIABILITY LITIGATION

MDL No. 2997

SCHEDULE A
Central District of California
ROBBINS v. GERBER PRODUCTS COMPANY, ET AL., C.A. No. 2:21−01457
Northern District of California
IN RE PLUM BABY FOOD LITIGATION, C.A. No. 4:21−00913
MCKEON, ET AL. v. PLUM, PBC, ET AL., C.A. No. 4:21−01113
Northern District of Illinois
GARCES v. GERBER PRODUCTS CO., ET AL., C.A. No. 1:21−00719
District of Kansas
JOHNSON, ET AL. v. BEECH−NUT NUTRITION COMPANY, ET AL.,
C.A. No. 2:21−02096
Western District of Missouri
SMITH, ET AL. v. THE HAIN CELESTIAL GROUP, INC., C.A. No. 4:21−00129
District of New Jersey
SMID v. CAMPBELL SOUP COMPANY, ET AL., C.A. No. 1:21−02417
SHEPARD, ET AL. v. GERBER PRODUCTS COMPANY, C.A. No. 2:21−01977
MOORE v. GERBER PRODUCTS COMPANY, C.A. No. 2:21−02516
Eastern District of New York
WALLS, ET AL. v. BEECH−NUT NUTRITION COMPANY, ET AL.,
C.A. No. 1:21−00870
STEWART, ET AL. v. HAIN CELESTIAL GROUP, INC., C.A. No. 2:21−00678
BREDBERG, ET AL. v. THE HAIN CELESTIAL GROUP, INC., C.A. No. 2:21−00758
MAYS v. HAIN CELESTIAL GROUP, INC., C.A. No. 2:21−00805
BOYD v. HAIN CELESTIAL GROUP, INC., C.A. No. 2:21−00884
MCKEON, ET AL. v. HAIN CELESTIAL GROUP, C.A. No. 2:21−00938
BAUMGARTEN v. THE HAIN CELESTIAL GROUP, INC., C.A. No. 2:21−00944
WILLOUGHBY v. HAIN CELESTIAL GROUP, C.A. No. 2:21−00970

- A2 LOPEZ−SANCHEZ v. THE HAIN CELESTIAL GROUP, INC., C.A. No. 2:21−01045
ZORRILLA v. HAIN CELESTIAL GROUP, INC., C.A. No. 2:21−01062
GALLOWAY v. HAIN CELESTIAL GROUP, INC., C.A. No. 2:21−01067
BACCARI, ET AL. v. HAIN CELESTIAL GROUP, INC., C.A. No. 2:21−01076
ALBANO, ET AL. v. HAIN CELESTIAL GROUP, INC., ET AL., C.A. No. 2:21−01118
Northern District of New York
THOMAS, ET AL. v. BEECH−NUT NUTRITION COMPANY, C.A. No. 1:21−00133
PEEK v. BEECH−NUT NUTRITION COMPANY, C.A. No. 1:21−00167
MOORE, ET AL. v. BEECH−NUT NUTRITION COMPANY, C.A. No. 1:21−00183
DOYLE v. BEECH−NUT NUTRITION CO., C.A. No. 1:21−00186
BOYD v. BEECH−NUT NUTRITION COMPANY, C.A. No. 1:21−00200
CANTOR, ET AL. v. BEECH−NUT NUTRITION COMPANY, C.A. No. 1:21−00213
HENRY v. BEECH−NUT NUTRITION CO., C.A. No. 1:21−00227
MOTHERWAY v. BEECH−NUT NUTRITION COMPANY, C.A. No. 1:21−00229
GANCARZ v. BEECH−NUT NUTRITION COMPANY, C.A. No. 1:21−00258
Southern District of New York
STEWART, ET AL. v. NURTURE, INC., C.A. No. 1:21−01217
SOTO v. NURTURE, INC., C.A. No. 1:21−01271
JAIN v. NURTURE, INC., C.A. No. 1:21−01473
SMITH v. NURTURE, INC., C.A. No. 1:21−01534
HAMPTON, ET AL. v. NURTURE, INC., C.A. No. 1:21−01882
Eastern District of Virginia
KEETER v. GERBER PRODUCTS COMPANY, C.A. No. 1:21−00269
MOORE v. GERBER PRODUCTS COMPANY, C.A. No. 1:21−00277