Jacqueline Dean v. Colgate-Palmolive Co.

Filing 15

ORDER DENYING TRANSFER re: pldg. (11 in CAC/5:15-cv-00107, 9 in CAN/3:16-cv-02697, 13 in MDL No. 2735, 10 in NYS/7:16-cv-03308), ( 1 in MDL No. 2735) The motion to transfer, pursuant to 28 U.S.C. 1407, is DENIEDSigned by Judge Sarah S. Vance, Chair, PANEL ON MULTIDISTRICT LITIGATION, on 10/4/2016. Associated Cases: MDL No. 2735, CAC/5:15-cv-00107, CAN/3:16-cv-02697, NYS/7:16-cv-03308 (TLL)

UNITED STATES JUDICIAL PANEL
on
MULTIDISTRICT LITIGATION

IN RE: COLGATE OPTIC WHITE
TOOTHPASTE MARKETING AND
SALES PRACTICES LITIGATION

MDL No. 2735

ORDER DENYING TRANSFER

Before the Panel:* Plaintiff in a Northern District of California action (Vigil) moves under 28
U.S.C. § 1407 to centralize this litigation concerning the marketing of Colgate Optic White toothpastes
in the Southern District of New York. This litigation currently consists of three actions listed on Schedule
A and pending in three districts. Defendant Colgate-Palmolive Co. (Colgate) supports centralization in
the Southern District of New York. Plaintiffs in the Southern District of New York (Canale) and the
Central District of California action (Dean), who are represented by common counsel, oppose
centralization and, alternatively, suggest centralization in the Central District of California, where the Dean
action has been pending for over eighteen months.
After considering all argument of counsel, we conclude that Section 1407 centralization of this
litigation is not appropriate. The actions here undoubtedly involve common factual issues arising from
the allegedly deceptive marketing and sale of Colgate Optic White toothpaste products.2 Plaintiffs assert
that defendant’s contentions that the products can deeply whiten teeth and remove stains below the surface
of teeth were false and misleading. All actions are putative class actions, and while the Central District
of California and Southern District of New York cases allege multi-state classes that do not overlap, both
of the putative classes in those actions overlap with the putative nationwide class alleged in the last-filed
action pending in the Northern District of California. In litigation such as this, where only a few actions
are involved, the proponent of centralization bears a heavier burden to demonstrate that centralization is
appropriate. See In re: Transocean Ltd. Sec. Litig. (No. II), 753 F. Supp. 2d 1373, 1374 (J.P.M.L. 2010).
Moving plaintiff has failed to do so here.
The progress that has already taken place in Dean, and the limited number of involved counsel and
courts lead us to conclude that centralization is not necessary to serve the convenience of the parties and
witnesses or promote the just and efficient conduct of the actions. Instead, informal coordination of
*

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.

2

The Colgate Optic White products at issue include: Sparkling White, Icy Fresh, Enamel White,
Sparkling Mint, and White Mild Mint. The Colgate Optic White Platinum toothpastes at issue
include: White & Radiant (formerly known as Optic White Platinum Whiten & Protect) and Lasting
White (formerly Optic White Platinum Whiten & Protect).

-2discovery and pretrial motions is practicable and preferable to centralization. Various mechanisms are
available to minimize or eliminate the possibility of duplicative discovery in the absence of an MDL.
Notices of deposition can be filed in all related actions; the parties can stipulate that any discovery relevant
to more than one action can be used in all those actions; or the involved courts may direct the parties to
coordinate their pretrial activities. See, e.g., In re: Eli Lilly & Co. (Cephalexin Monohydrate) Patent Litig.,
446 F. Supp. 242, 244 (J.P.M.L. 1978); MANUAL FOR COMPLEX LITIGATION, Fourth, § 20.14 (2004).
Further, though we express no opinion on the viability of such relief, the parties may wish either to transfer
two of the actions to a single, agreed-upon district under Section 1404 or, alternatively, consider seeking
a stay, dismissal or transfer of any later-filed and duplicative cases under the “first-to-file rule” to
streamline this litigation.3
IT IS THEREFORE ORDERED that the motion for Section 1407 centralization of the actions listed
on Schedule A is denied.

PANEL ON MULTIDISTRICT LITIGATION

Sarah S. Vance
Chair
Marjorie O. Rendell
Lewis A. Kaplan
R. David Proctor

3

Charles R. Breyer
Ellen Segal Huvelle
Catherine D. Perry

The “first-to-file rule” is a doctrine of federal comity, pursuant to which, “‘when related cases are
pending before two federal courts, the court in which the case was last filed may refuse to hear it if
the issues raised by the cases substantially overlap.’” In re: Spillman Dev. Group, Ltd., 710 F.3d
299, 307 (5th Cir. 2013) (quoting Cadle Co. v. Whataburger of Alice, Inc., 174 F.3d 599, 603 (5th
Cir.1999)).

IN RE: COLGATE OPTIC WHITE
TOOTHPASTE MARKETING AND
SALES PRACTICES LITIGATION

MDL No. 2735

SCHEDULE A

Central District of California
DEAN v. COLGATE!PALMOLIVE CO., C.A. No. 5:15!00107
Northern District of California
VIGIL v. COLGATE!PALMOLIVE CO., C.A. No. 3:16!02697
Southern District of New York
CANALE v. COLGATE!PALMOLIVE CO., C.A. No. 7:16!03308