In re Gerber Probiotic Products Marketing & Sales Practices Litigation
2012 U.S. Dist. LEXIS 149742
J.P.M.L.2012Background
- Pursuant to 28 U.S.C. § 1407, plaintiffs seek centralization of ten actions involving Gerber probiotic products across five districts.
- Five actions are pending in the District of New Jersey, where Gerber is headquartered, with the Siddiqi action filed in California already transferred to New Jersey.
- Plaintiffs allege misbranding/marketing of infant formulas and cereals for immunity, digestive health, and cognitive benefits due to probiotic cultures, prebiotics, DHA, and/or ARA.
- Defendants initially opposed centralization and then supported NJ centralization at oral argument for non-New Jersey actions.
- The Panel recognizes common factual and legal issues but finds that Section 1407 centralization is not necessary at this time because 1404 motions could potentially eliminate the multidistrict character.
- Judicial economy concerns and the potential for consolidation under 1404 motivate possibly readdressing centralization if 1404 outcomes fail to moot the MDL.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Should the panel centralize under 1407 now? | Burns/plaintiffs urge centralization due to common issues. | Defendants argue either 1407 is premature or 1404 could resolve MDL concerns. | No; 1407 centralization denied at this time. |
| Does a reasonable prospect exist that 1404 transfers could eliminate MDL characteristics? | Siddiqi and others suggest transfer to NJ could consolidate. | 1404 moves pending elsewhere may render MDL moot. | Yes; potential 1404 resolution justifies not centralizing now. |
| Should the Panel utilize or defer other options before 1407 centralization? | Cooperation, dismissals, or voluntary consolidation may suffice. | Transfer and coordination are preferable to MDL centralization. | Panel should consider alternatives first and defer centralization. |
| If 1407 denial leads to further action, can centralization be revisited later? | Revisit if related actions arise. | Further related actions could undermine current agreements. | Yes; another 1407 motion may be filed and reconsidered later. |
Key Cases Cited
- In re Republic Western Ins. Co. Ins Coverage Litig., 206 F.Supp.2d 1364 (J.P.M.L. 2002) (reasonable prospect can defeat centralization if 1404 would resolve MDL)
- In re Michaels Stores, Inc., Pin Pad Litig., 844 F.Supp.2d 1368 (J.P.M.L. 2012) (denying centralization where one action already transferred under 1404)
- In re Dollar Tree Stores, Inc., Fair Labor Standards Act (FLSA) & Wage & Hour Litig., 829 F.Supp.2d 1376 (J.P.M.L. 2011) (denying centralization where 1404 motions pending in other actions)
- Lexecon, Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523 U.S. 26 (1998) (transferee court cannot conduct bellwether trials; remand rules apply)
- In re Air Crash Over the Hudson River Near New York, New York on August 8, 2009, 716 F.Supp.2d 1360 (J.P.M.L. 2010) (advocates transfer under 1404 where appropriate to streamline)
- In re Oxycontin Antitrust Litig., 314 F.Supp.2d 1388 (J.P.M.L. 2004) (section 1404 coordination may be appropriate with many actions)
- In re Glaceau VitaminWater Mktg. & Sales Practices Litig. (No. II), 764 F.Supp.2d 1349 (J.P.M.L. 2011) (centralization reconsidered when later related actions dilute prior agreements)