Cannon et al v. Starbucks Corporation

Filing 18

ORDER to Consolidate with Lead Case Number C11-1985MJP. Motions terminated: 2 MOTION to Consolidate Cases and Appoint Interim Co-Lead and Liaison Counsel filed by Jonah Cannon, Rachel Wassel, James Kaen. Counsel to file all pleadings in Lead Case Number C11-1985MJP, by Judge Marsha J. Pechman. (MD)

The Honorable Marsha J. Pechman

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
BONNIE KURNICK, on behalf of herself and )
all others similarly situated,
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Plaintiff, )
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v.
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STARBUCKS CORPORATION, and DOES 1- )
10, inclusive,
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Defendants. )
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JONAH CANNON, JAMES KAEN, and
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RACHEL WASSEL, Individually and on
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Behalf of Themselves and All Other Persons
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Similarly Situated,
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Plaintiffs,
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v.
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STARBUCKS CORPORATION,
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Defendant.
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No. 2:11-cv-01985-MJP

No. 2:12-cv-00169-MJP
ORDER CONSOLIDATING RELATED
CASES AND APPOINTING INTERIM COLEAD AND LIAISON COUNSEL

This matter comes before the Court on Plaintiffs’ cross motions to appoint interim lead

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counsel and to stay or consolidate related cases. (Case No. 11-1985MJP, Dkt. No. 19; Case No.

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C12-169MJP, Dkt. No. 2.) Having reviewed the motions, the opposition to each motion (Dkt.

ORDER CONSOLIDATING RELATED CASES AND
APPOINTING INTERIM CO-LEAD AND LIAISON COUNSEL

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Nos. 20, 24), the replies to each opposition brief (Dkt. Nos. 29, 32), Defendant Starbucks

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Corporation’s response to the motions (Dkt. No. 15), and the supplemental materials submitted

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by counsel (Dkt. Nos. 30, 31), the Court GRANTS Plaintiffs Jonah Cannon, James Kaen, and
Rachel Wassel’s (“Cannon Plaintiffs”) motion. 1

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The Court first finds that consolidation is appropriate in this case. Federal Rule 42(a)

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states that consolidation is appropriate where actions name common defendants and involve

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common questions of law or fact. Fed. R. Civ. P. 42(a). Here, both cases involve the same

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defendant and center on the same commercial practice of Starbucks charging an undisclosed

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premium on purchases of scooped coffee beans sold in less than one pound increments. (Case

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No. C12-169MJP, Dkt. No. 1 at 2; Case No. C11-1985, Dkt. No. 1 at 3.)

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The Kurnick Plaintiff urges the Court not to consolidate the related case, but instead to

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stay the Cannon case, because “the Kurnick case is much further along than the Cannon action,

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and the parties in Kurnick have proposed a short, early, and efficient method to determine if the

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parties are able to resolve the underlying claims, on a nationwide basis.” (Case No. C11-

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1985MJP, Dkt. No. 19 at 4.) Having reviewed the record in both cases, the Court is not

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persuaded that the Kurnick action, which was filed Nov. 29, 2011, is significantly further along

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than the Cannon action, which was filed Jan. 30, 2012. Further, the Court does not agree that the
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early settlement period proposed by the Kurnick Plaintiffs provides a sound reason to stay the
Cannon case. (Case No. C11-1985MJP, Dkt. No. 19 at 4.)
The Court also finds that, under the criteria set by the Federal Rules, counsel for the

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Cannon Plaintiffs should be appointed interim lead counsel. Federal Rule 23(g)(3) permits the

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Court to “designate interim counsel to act on behalf of a putative class before determining

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A number of duplicate motions were filed in both cases. In this paragraph, where a specific
case is not identified, the docket number refers to the docket in Case No. C11-1985MJP.
ORDER CONSOLIDATING RELATED CASES AND
APPOINTING INTERIM CO-LEAD AND LIAISON COUNSEL

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whether to certify the action as a class action.” Fed. R. Civ. P. 23(g)(3). When multiple groups of

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attorneys seek to act as interim counsel, the Court is to select the group best able to represent the

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class with respect to matters through a decision on class certification, considering factors set out

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in Fed. R. Civ. P. 23(g)(1). See In re Hannaford Bros. Co., 252 F.R.D. 66, 67-69 (D. Me. 2008).
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The factors set forth in Fed. R. Civ. P. 23(g)(1)(A) are:
(1) The work counsel has done in identifying or investigating potential claims in the
action;
(2) Counsel’s experience in handling class actions, other complex litigation, and the
types of claims asserted in the action;
(3) Counsel’s knowledge of the applicable law; and

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(4) The resources that counsel will commit to representing the class.
Here, although the relative detail of the two complaints indicates that counsel for Cannon

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Plaintiffs have done more work in investigating the potential claims than counsel for Kurnick

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Plaintiffs, the Court’s decision is based primarily on the Court’s evaluation of counsel’s

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experience in handling similar class action litigation. (Cf. Case No. C11-1985MJP, Dkt. No. 19

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at 7-10; Case No. C12-169MJP, Dkt. No. 2 at 10-13.) In reaching its decision, the Court placed

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particular emphasis on the references submitted by counsel. (Case No. C11-1985MJP, Dkt. Nos.
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30, 31.) Because both cases were filed relatively recently, the Court does not give significant

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weight to the initial disclosures and early settlement negotiations conducted between Defendant

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and Kurnick Plaintiffs. (Case No. C11-1985MJP, Dkt. No. 19 at 6-7.)

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Pursuant to these findings, it is hereby ORDERED:

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ORDER CONSOLIDATING RELATED CASES AND
APPOINTING INTERIM CO-LEAD AND LIAISON COUNSEL

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I.

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CONSOLIDATION
1.

The above-captioned actions are hereby consolidated for all purposes into one

action pursuant to Rule 42(a) of the Federal Rules of Civil Procedure, along with any future-filed
or transferred tag-along actions on behalf of those who purchased Starbucks Corporation coffee

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beans in an amount of less than one pound and were subject to a $1.50 surcharge.
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2.

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The instant actions and any tag-along actions shall be referred to herein as the

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“Consolidated Actions.” This Order shall apply to the Consolidated Actions and to any and all

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cases that are subsequently filed in this Court or transferred to this Court, which action is brought

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against the defendant and/or any other past or present employee or agent of the defendants

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regarding the allegations in the Consolidated Actions.

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3.

The short caption for the Consolidated Actions shall be “In re Starbucks

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Consumer Litig., Civil Action No. 2:11-cv-01985.” Every pleading in this Consolidated Action

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shall bear the following caption:

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON

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IN RE STARBUCKS CONSUMER LITIG.
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_______________________________________)
4.

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No. 2:11-cv-01985

This Court requests the assistance of counsel in calling to the attention of the clerk

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of this Court the filing or transfer of any case which might properly be consolidated as part of the

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Consolidated Actions.

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II.

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MASTER DOCKET AND MASTER FILE
5.

A Master Docket and Master File are hereby established for the Consolidated

Actions. The Master File shall be Case No. 2:11-cv-01985. Entries in the Master Docket shall

ORDER CONSOLIDATING RELATED CASES AND
APPOINTING INTERIM CO-LEAD AND LIAISON COUNSEL

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be applicable to these Consolidated Actions as more fully set forth below. Separate dockets shall

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also be maintained for each of these Consolidated Actions, and entries shall be made in

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accordance with the regular procedures of the Clerk of the Court, except as modified by this

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Order.
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III.

NEWLY-FILED OR TRANSFERRED ACTIONS
6.

When a case that arises out of the subject matter of this action is hereinafter filed

in this Court or transferred from another Court, the Clerk of this Court shall:

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a.

file a copy of this Order in the separate file for such action;

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b.

mail a copy of this Order to the attorneys for the plaintiff(s) in the newly

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filed or transferred case and to any new defendant(s) in the newly filed or

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transferred case; and

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c.

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make the appropriate entry in the docket for this action.

Each new case which arises out of the subject matter of the Consolidated Actions

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that is filed in this Court or transferred to this Court shall be consolidated with this action and

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this Order shall apply thereto, unless a party objecting to this Order or any provision of this

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Order shall, within ten (10) days after the date upon which a copy of this Order is served on

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counsel for such party, file an application for relief from this Order or any provision herein and

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this Court deems it appropriate to grant such application.
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8.

During the pendency of this litigation, or until further order of this Court, the

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parties shall take reasonable steps to preserve all documents within their possession, custody or

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control, including computer-generated and stored information and materials such as

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computerized data and electronic mail, containing information that is relevant to or which may

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lead to the discovery of information relevant to the subject matter of the pending litigation.

ORDER CONSOLIDATING RELATED CASES AND
APPOINTING INTERIM CO-LEAD AND LIAISON COUNSEL

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IV.

APPOINTMENT OF INTERIM CO-LEAD AND LIAISON COUNSEL
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The Court hereby appointments Block & Leviton LLP and Shapiro Haber &

Urmy LLP as Interim Co-Lead Counsel and Byrnes Keller Cromwell LLP as Liaison Counsel.
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Lead Counsel shall have the following responsibilities and duties, to be carried

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out either personally or through counsel whom Lead Counsel shall designate:
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a.

to coordinate the briefing and argument of any and all motions;

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b.

to coordinate the conduct of any and all discovery proceedings;

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c.

to coordinate the examination of any and all witnesses in depositions;

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d.

to coordinate the selection of counsel to act as spokesperson at all pretrial

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conferences;

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e.

to call meetings of the plaintiffs’ counsel as they deem necessary and

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appropriate from time to time;

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f.

to coordinate all settlement negotiations with counsel for defendant;

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g.

to coordinate and direct the pretrial discovery proceedings and the

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preparation for trial and the trial of this matter and to delegate work

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responsibilities to selected counsel as may be required;

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h.

to coordinate the preparation and filings of all pleadings; and

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to supervise all other matters concerning the prosecution or resolution of

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the Consolidated Actions.

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No motion, discovery request or other pretrial proceedings shall be initiated or

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filed by any plaintiffs without the approval of Co-Lead Counsel, so as to prevent duplicative

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pleadings or discovery by plaintiffs. No settlement negotiations shall be conducted without the

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approval of Co-Lead Counsel.

ORDER CONSOLIDATING RELATED CASES AND
APPOINTING INTERIM CO-LEAD AND LIAISON COUNSEL

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12.

Co-Lead Counsel shall have the responsibility of receiving and disseminating

Court orders and notices.
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Co-Lead Counsel shall be the contact between plaintiffs’ counsel and defendant’s

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counsel, as well as the spokespersons for all plaintiffs’ counsel, and shall direct and coordinate
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the activities of plaintiffs’ counsel. Co-Lead Counsel shall be the contact between the Court and

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plaintiffs and their counsel. Co-Lead Counsel may designate other counsel, including Liaison

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Counsel, to act of its behalf.

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14.

All counsel for plaintiffs in the Action shall submit to Co-Lead Counsel detailed

time reports reflecting the hours of work expended by each attorney, their billing rate and the
subject matter of the work. Time reports shall be submitted on a quarterly basis with the first

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report due no later than one month following entry of this Order, and shall continue for each

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subsequent quarter thereafter or on such schedule as Co-Lead Counsel shall determine. Any

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failure to timely submit such reports to Co-Lead Counsel may result in the disqualification of

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such unreported time from being reimbursed.

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15.

Defendant shall effect service of papers on plaintiffs by serving copies on Co-

Lead Counsel by overnight delivery service, electronic mail (“e-mail”), telecopy, hand delivery,

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or through the Court’s CM/ECF filing system. Plaintiffs shall effect service of papers on
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defendant by serving copies on each of its counsel by overnight delivery service, e-mail,

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telecopy, hand delivery, or through the Court’s CM/ECF filing system.

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SO ORDERED THIS 10th day of March, 2012.

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A
Marsha J. Pechman
United States District Judge
ORDER CONSOLIDATING RELATED CASES AND
APPOINTING INTERIM CO-LEAD AND LIAISON COUNSEL