Case 4:21-cv-00498-JST Document 30 Filed 05/25/21 Page 1 of 13
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`Mark C. Goodman (State Bar No. 154692)
` mark.goodman@bakermckenzie.com
`BAKER & McKENZIE LLP
`Two Embarcadero Center, 11th Floor
`San Francisco, CA 94111
`Telephone: +1 415 576 3000
`Facsimile: +1 415 576 3099
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`Alexander G. Davis (State Bar No. 287840)
` alexander.davis@bakermckenzie.com
`Anne Kelts Assayag (State Bar No. 298710)
` anne.assayag@bakermckenzie.com
`BAKER & McKENZIE LLP
`600 Hansen Way
`Palo Alto, CA 94304-1044
`Telephone: +1 650 856 2400
`Facsimile: +1 650 856 9299
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`Attorneys for Defendants
`SUBWAY RESTAURANTS, INC.,
`FRANCHISE WORLD HEADQUARTERS,
`LLC and SUBWAY FRANCHISEE
`ADVERTISING TRUST FUND LTD.
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`Patrick McNicholas, Esq., SBN 125868
`pmc@micholaslaw.com
`Jeffrey Lamb, Esq., SBN 257648
`jrl@mcnicholaslaw.com
`Emily Pincin, Esq., SBN 334566
`erp@mcnicholaslaw.com
`McNICHOLAS & McNICHOLAS, LLP
`10866 Wilshire Blvd., Ste. 1400
`Los Angeles, California 90024
`Tel: (310) 474-1582
`Fax: (310) 475-7871
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`Mark Lanier, Esq., (Admitted Pro Hac Vice)
`mark.lanier@lanierlawfirm.com
`Alex Brown, Esq., (Admitted Pro Hac Vice)
`alex.brown@lanierlawfirm.com
`Jonathan Wilkerson, Esq., (Admitted Pro Hac
`Vice)
`jonathan.wilkerson@lanierlawfirm.com
`THE LANIER LAW FIRM, PC
`10940 W. Sam Houston Pkwy N, Ste. 100
`Houston, TX 77064
`Tel: (713) 659-5200
`Fax: (713) 659-2204
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`Shalini Dogra, Esq., SBN 309024
`shalini@dogralawgroup.com
`DOGRA LAW GROUP PC
`2219 Main Street, Unit 239
`Santa Monica, CA 90405
`Tel: (747) 234-6673
`Fax: (310) 868-0170
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`Attorneys for Named Plaintiffs KAREN
`DHANOWA and NILIMA AMIN and Proposed
`Class
`
`
`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF CALIFORNIA
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`v.
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`Plaintiff,
`
`Case No: 4:21-CV-00498-JST
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`(Assigned for all purposes to the Honorable
`Jon S. Tigar, Courtroom 6)
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`JOINT CASE MANAGEMENT
`STATEMENT
`
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`Complaint Filed: January 21, 2021
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`KAREN DHANOWA and NILIMA AMIN,
`on behalf of themselves and all others
`similarly situated;
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`SUBWAY RESTAURANTS, INC., a
`Delaware Corporation; FRANCHISE
`WORLD HEADQUARTERS, LLC., a
`Connecticut Limited Liability Corporation;
`SUBWAY FRANCHISEE ADVERTISING
`TRUST FUND LTD., a Connecticut
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`Case 4:21-cv-00498-JST Document 30 Filed 05/25/21 Page 2 of 13
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`Corporation; and DOES 1 through 50,
`Inclusive,
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`Defendants.
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`I.
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`TO THE HONORABLE JON S. TIGAR, JUDGE OF THE UNITED STATES DISTRICT
`COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA:
`The undersigned counsel, on behalf of their respective clients, submit the following Joint
`Case Management Statement in accordance with the requirements of Rule 26(f) of the Federal Rules
`of Civil Procedure, Local Rule 16-9, the Standing Order for All Judges of the Northern District of
`California, and the Court's Order Setting Mandatory Scheduling Conference dated March 2, 2021
`(Dkt. 21.) Counsel for Plaintiffs and Defendants (the “Parties”) engaged in telephonic and
`electronic meet and confer efforts to jointly prepare this Joint Case Management Statement.
`JOINT CASE MANAGEMENT STATEMENT
`Jurisdiction And Service
`Plaintiffs submit that this Court has subject matter jurisdiction in this case under 28 U.S.C.
`§ 1332(a) and (d). Named Plaintiffs are citizens of California. Defendant Subway Restaurants, Inc.
`is an entity duly incorporated in the state of Delaware with its principal place of business in
`Connecticut. Defendant Franchise World Headquarters, LLC and Defendant Subway Franchisee
`Advertising Trust Fund, Ltd. are incorporated in Connecticut with their principal places of business
`in Connecticut.
`Plaintiffs contend that the amount in controversy, exclusive of interests and costs, exceeds
`$5,000,000, the proposed class will include 100 or more members and at least one member of the
`proposed class is a citizen of a state different from any defendant. Plaintiffs further contend that the
`amount in controversy, exclusive of interests and costs, is greater than $75,000. Accordingly, this
`Court has subject matter jurisdiction over this matter on the basis of 28 U.S.C. § 1332(a) and 28
`U.S.C. § 1332(d)(2).
`Defendants contest that the plaintiffs have standing to assert the claims in their complaint,
`as they have no injury in fact as a result of the purchase of the products identified in the operative
`complaint. Moreover, jurisdiction is improper under 28 U.S.C. § 1332(a) because the named
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`Case 4:21-cv-00498-JST Document 30 Filed 05/25/21 Page 3 of 13
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`plaintiffs’ individual claims do not exceed the $75,000 amount-in-controversy threshold for
`diversity jurisdiction. The complaint likewise does not allege jurisdiction under section 1332(a).
`Accordingly, Defendants contend that the Court does not have and cannot assert jurisdiction over
`this matter.
`All named defendants have been served but their deadline to respond to the complaint has
`not yet occurred.
`II.
`Facts And Disputed Factual Issues
`A.
`Statement Of Plaintiffs
`Plaintiffs contend that Defendants made false and misleading representations about their
`tuna products (“Products”) and mislabeled the Products as “100% wild caught” “skipjack and
`yellowfin tuna,” even though that is not the case. Plaintiffs’ Complaint for Damages alleged that
`they purchased units of the Products from Defendants’ locations in Alameda County, and at the
`time they made the purchases, Plaintiffs relied upon and believed Defendants’ “tuna” marketing
`and labeling scheme. Plaintiffs have brought a class-wide suit on behalf of themselves and all
`purchasers of the Products statewide in California for common law fraud, negligent
`misrepresentation, and unjust enrichment. Additionally, Plaintiffs allege on behalf of themselves
`and all class members that Defendants have violated California’s Legal Remedies Act (“CLRA”)
`as well as the State’s Business and Professions Code §§ 17200 and 17500, which prohibit false
`advertising and unfair competition.
`B.
`Defendants’ Statement
`Defendants contend that the plaintiffs’ claims are without basis in fact or law. Defendants’
`tuna products consist of 100% wild caught skipjack or yellowfin tuna and there is no rational basis
`for the plaintiffs or their counsel to claim otherwise. Defendants have provided information to the
`plaintiffs demonstrating that the products about which the plaintiffs complain consist of tuna with
`the expectation that the plaintiffs would withdraw their complaint. Despite receiving this
`information, the plaintiffs have refused to dismiss this meritless litigation. Since the tuna products
`are not mislabeled, the plaintiffs purchased what they intended to purchase and they have not been
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`damaged in any amount whatsoever and they have no injury in fact to confer Article III standing
`in this case.
`III. Legal Issues And Disputed Points Of Law
`Defendants will file a motion to dismiss this action pursuant to the Federal Rules of Civil
`Procedure 12(b)(1) and 12(b)(6). Plaintiffs contend that Defendants have no basis to seek dismissal.
`Plaintiffs further assert that their claims have been pleaded with adequate particularity and on a
`reasonable basis; nevertheless, Plaintiffs have informed Defendants of their intent to file a First
`Amended Complaint to address Defendants’ concerns and clarify their allegations. Defendants
`contend that, no matter how many times they try to amend their pleadings, Plaintiffs cannot state a
`claim relating to the Products on which relief can be granted against Defendants.
`IV. Motions
`A. Motions Seeking To Add Other Parties Or Claims
`At this time, Plaintiffs do not anticipate filing any motion to add other parties. At this
`time, Plaintiffs do not contemplate adding additional causes of action.
`B. Motions To File Amended Pleadings
`Plaintiffs intend to file a First Amended Complaint in this action. Defendants have
`stipulated to allow Plaintiffs to file a First Amended Complaint by June 7, 2021. Plaintiffs agreed
`to permit Defendants to file their responsive pleadings by June 21, 2021.
`C. Motion To Dismiss
`Defendants will file a motion to dismiss if the plaintiffs file an amended complaint or
`otherwise attempt to maintain this action.
`V. Amendment Of Pleadings
`Plaintiffs intend to amend the operative complaint by June 7, 2021.
`VI. Evidence Preservation
`Plaintiffs have reviewed the Guidelines for the Discovery of Electronically Stored
`Information and have spoken with the opposing parties about preserving evidence.
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`VII. Disclosures
`The Parties have not yet made initial disclosures. Plaintiffs propose that the parties
`exchange initial disclosures by June 15, 2020. Defendants propose that such disclosures be made,
`if at all, only after the Court resolves Defendants’ motion to dismiss this litigation with prejudice.
`VIII. Discovery
`A.
`Subjects On Which Discovery May Be Needed
`Plaintiffs intend to conduct discovery on all issues identified in Plaintiffs’ Complaint, as
`well as any issues identified by Defendants in their answer thereto. Plaintiffs do not anticipate any
`unusual issues about disclosure or discovery of electronically stored information, including the form
`or forms in which it should be produced. Plaintiffs anticipate that the scope of discovery will include
`seeking information related to class certification, as well as the merits of the instant matter. They
`do not seek a distinction between certification and merits discovery, because discovery that assists
`the certification decision will likely include information necessary to identify the nature of the
`issues. Plaintiffs anticipate that discovery outside of the United States may be required, because
`Defendants have supply chains outside of the United States. Therefore, intentional discovery may
`be needed to confirm all potential and actual sources of fraud.
`Defendants do not believe that discovery will be required in this case because the litigation
`should be fully and finally dismissed at the pleadings stage, obviating the need to conduct discovery
`or to incur the expenses required to conduct discovery. If there is discovery in this case, discovery
`should be bifurcated to conserve resources. The first phase of discovery should focus on the
`plaintiffs’ standing to bring the claims at issue. This would involve discovery relating to the tuna
`products at issue in the complaint and their ingredients. If the products consist of tuna, which they
`do, remaining costly and invasive discovery into Defendants’ sales and business practices will be
`unnecessary. If discovery indicates that the products do not consist of tuna as advertised, then
`discovery into sales and business practices can proceed. Defendants will depose the plaintiffs, the
`plaintiffs’ experts and consultants and third parties regarding the tuna products that the plaintiffs
`allegedly purchased and the ingredients of those products.
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`C. Whether Discovery Should Be Conducted In Phases
`Plaintiff believes that discovery does not need to be conducted in phases. Defendants
`submit that, in the interests of efficiency and economy, discovery should be conducted in phases
`as explained supra. The Parties agree that discovery should be limited to or focused on particular
`issues identified in the pleadings.
`D. What Discovery Has Been Conducted Thus Far
`To date, no formal discovery has been conducted. Pursuant to the Manual for Complex
`Litigation, Plaintiffs are amenable to confer and stipulate to relevant facts that are not genuinely
`disputed. The Parties are amenable to entering into a stipulated e-discovery order as needed and
`any other written protective orders that will facilitate the exchange of information and support
`resolution efforts.
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`E. Whether Applicable Limitations Should Be Changed Or Other Limitations
`Imposed
`Other than the phasing of discovery identified by Defendants, the Parties do not believe
`that the ordinary limits should be modified at this point.
`F.
`Proposed Discovery Plan
`The Parties’ proposed discovery plan is set forth in Exhibit A to this Joint Statement.
`IX. Class Actions
`Plaintiffs seek to maintain this case as a class action pursuant to Federal Rules of Civil
`Procedure 23(a) and (b)(1), (b)(2), and/or (b)(3). Pursuant to F.R.C.P. 23, Plaintiffs bring this class
`action on behalf of themselves individually and all other similarly situated statewide in California.
`Plaintiffs seek to represent a class comprised of all persons in California who, on or after January
`21, 2017 (the “Class Period”) purchased the Products for household use and not for resale or
`distribution. Excluded from the proposed class are Defendants, their affiliates, employees, officers,
`and directors, any individual who received remuneration from Defendants in connection with that
`individual’s use or endorsement of the Products, the judge(s) assigned to this case, and the attorneys
`of record in this case. Defendants do not believe this matter is properly brought as a class action.
`Plaintiffs’ Statement
`Plaintiffs contend that this action is properly brought as a class action for the following
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`reasons:
`(a) The members in the proposed class, which contains no less than one thousand
`members and based on good information and belief is comprised of several thousands of
`individuals, are so numerous that individual joinder of all members is impracticable, and
`disposition of the claims in a single class action will provide substantial benefits to the Parties and
`Court, and is in the best interests of the parties and judicial economy;
`(b) Plaintiffs can fairly and adequately protect the interests of all members of the proposed
`class. Plaintiffs’ claims are typical of the claims of the members of the proposed class. Plaintiffs
`and all class members have been injured by the same practices of Defendants. Plaintiffs’ claims
`arise from the same practices and conduct that give rise to the claims of all class members and are
`based on the same legal theories. Plaintiffs’ claims are typical of class members’ claims, as they are
`based on the same underlying facts, events and circumstances relating to Defendants’ conduct.
`Plaintiffs will fairly and adequately represent and protect the interests of the class, have no interest
`incompatible with the interests of the class, and have retained counsel competent and experienced
`in class actions, consumer protection, and false advertising litigation, including within the context
`of food and the food industry. Plaintiffs’ attorneys have the experience, knowledge, and resources
`to adequately and properly represent the interests of the proposed class. Plaintiffs have no interests
`antagonistic to those of other proposed class members, and they have retained attorneys experienced
`in consumer class actions and complex litigation as counsel;
`(c) Defendants have, or have access to, address information for the proposed Class
`Members, which may be used for the purpose of providing notice of the pendency of this class
`action. Further, the class definition itself describes a set of common characteristics sufficient to
`allow a prospective plaintiff or class member to identify himself or herself as having a right to
`recover based on the description;
`(d) Class treatment is superior to other options for resolution of the controversy because
`the relief sought for each class member is so small, that, absent representative litigation, it would
`be infeasible for class members to redress the wrongs done to them. Prosecution of separate
`actions by individual members of the proposed class would create a risk of inconsistent or varying
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`adjudications with respect to individual members of the class and thus establish incompatible
`standards of conduct for the party or parties opposing the class. Further, individual cases would
`be so numerous as to inefficiently exhaust judicial resources;
`(e) Questions of law and fact common to the class predominate over any questions
`affecting only individual class members. There are questions of law and fact common to the
`proposed class which predominate over any questions that may affect particular class members.
`Such questions of law and fact common to Plaintiffs and the class include, without limitation:
`Plaintiffs further contend that, whether Defendants were unjustly enriched by their conduct;
`whether Class Members suffered an ascertainable loss as a result of Defendants’ misrepresentations;
`whether, as a result of Defendants’ misconduct as alleged herein, Plaintiffs and the Class Members
`are entitled to restitution, injunctive relieve, and/or monetary relief, and if so, the amount and natural
`of such relief; whether Defendants made any statement they knew or should have known were false
`or misleading; whether Defendants maintained a longstanding marketing policy, practice and
`strategy of labeling, advertising and selling the Products labeled as “100% wild caught” “skipjack
`and yellowfin tuna,” when that is not the case; whether the utility of Defendants’ practices, if any,
`outweighed the gravity of the harm to their victims; whether Defendants’ conduct violated public
`policy, included as declared by specific constitutional, statutory, or regulatory provisions; whether
`Defendants’ conduct or any of their practices violated the California False Advertising Law, Cal.
`Bus. & Prof. Code §§ 17500 et seq., the California Consumers Legal Remedies Act, Cal. Civ. Code
`§§ 1750 et seq., The Federal Food, Drug and Cosmetics Act, 28 U.S.C. §§ 301 et seq. and its
`implementing regulations, 21 C.F.R. §§ 101 et seq., the Cal. Health & Safety Code §§ 109875 et
`seq., or any other regulation, statute or law; whether Defendants passed off the Products as that of
`another, within the meaning of Cal. Civ. Code § 1770(a)(1); whether Defendants misrepresented
`the source, sponsorship, approval or certification of the Products, within the meaning of Cal. Civ.
`Code § 1770(a)(2); whether Defendants misrepresented the Products’ affiliation, connection or
`association with, or certification by another, within the meaning of Cal. Civ. Code § 1770(a)(3);
`whether Defendants represented that the Products have characteristics, uses, or benefits which they
`does not have, within the meaning of Cal. Civ. Code § 1770(a)(5); whether Defendants represented
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`that the Products are of a particular standard, quality, or grade, when they were really of another,
`within the meaning of Cal. Civ. Code § 1770(a)(7); whether Defendants advertised the Products
`with the intent not to sell them as advertised, within the meaning of Cal. Civ. Code § 1770(a)(9);
`whether Defendants represented that the Products have been supplied in accordance with a previous
`representation when they have not, within the meaning of Cal. Civ. Code § 1770(a)(16); the proper
`equitable and injunctive relief, amount of restitution or disgorgement, and the proper amount of
`reasonable litigation expenses and attorneys’ fees.
`(f) As a result of the foregoing, class treatment is appropriate under Fed. R. Civ. P.
`23(a), (b)(1), (b)(2) and (b)(3), and may be appropriate for certification “with respect to particular
`issues” under Rule 23(b)(4).
`Plaintiffs’ Counsel and Attorneys of Record have reviewed the Procedural Guidance for
`Class Action Settlements. Plaintiffs propose that the Court consider whether the case can be
`maintained as a class action on or by March 22, 2022.
`Defendants’ Statement
`Defendants do not believe that this action is properly maintained as a lawsuit, much less a
`class action. If the claims survive a Rule 12 motion to dismiss -- and they should not, given the lack
`of factual support for any claim that the products at issue do not consist of tuna -- this litigation
`cannot proceed as a class action because individual issues of proof will predominate. Individual
`issue of damages alone will preclude class treatment in this case. Accordingly, if the case proceeds
`past the pleadings stage, Defendants will bring a motion to preclude class certification.
`Defendants’ counsel of record have reviewed the Procedural Guidance for Class Action
`Settlements.
`X. Related Cases
`The Parties agree that this matter is not related to any matter pending in this Court or any
`other Court, including bankruptcy court.
`XI. Relief
`Plaintiffs believe that they and members of the class are entitled to recover damages in the
`form of, inter alia, compensatory, statutory, and punitive damages, as well as reasonable
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`attorneys’ fees and expenses and injunctive relief to enjoin Defendants from continuing to engage
`in the false and deceptive practices fully alleged in Plaintiffs’ Complaint. Furthermore, Plaintiffs
`assert that they and all class members should be awarded equitable monetary relief, including
`restitution and disgorgement of the entirety of all Defendants’ ill-gotten gains, and all other relief
`the Court deems proper.
`Defendants contend that the facts demonstrate that the plaintiffs have not been -- and could
`not have been -- damaged in any amount, as they purchased tuna products that consisted of the
`ingredients set forth on the labels for the products available either at the restaurants at which the
`products were purchased or online.
`XII. Settlement And ADR
`The Parties have not yet tried to settle the case. Plaintiffs are amenable to engaging in
`settlement efforts after conducting limited discovery, but before moving for class certification.
`Additionally, in the event that pre-certification resolution is not reached, Plaintiffs will remain
`agreeable to settlement efforts after certification as well. Presently, Plaintiffs believe that private
`mediation will offer the most optimal opportunity for resolution efforts, but they are also agreeable
`to engaging in a settlement conference with a magistrate judge if necessary.
`Defendants do not believe that private mediation would be productive in this case, as the
`case is meritless and, if the Court will not dismiss the case at the pleadings stage, Defendants intend
`to vindicate themselves on summary judgment, at trial or on appeal. Defendants agree to
`participating in a settlement conference with a magistrate judge if the case proceeds past the
`pleadings stage.
`XIII. Consent To Magistrate Judge For All Purposes
`On March 1, 2021, Defendants declined the jurisdiction of a magistrate judge for this
`matter. (ECF No. 18.)
`XIV. Other References
`The Parties agree that this case is not suitable for binding arbitration, a special master or
`referral to the Judicial Panel on Multidistrict Litigation.
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`XV. Narrowing Of Issues
`Given that this case is in the very initial stages of litigation, and given that no discovery or
`initial disclosures have commenced, Plaintiffs believe it is premature to consider if any issues can
`be narrowed by agreement or motion. However, after initial disclosures have been exchanged and
`some discovery has occurred, Plaintiffs are agreeable to revisiting the option of identifying issues
`that can be narrowed by agreement or motion and taking steps to expedite the presentation of
`evidence at trial, included through summaries or stipulated facts.
`Defendants submit that the litigation can and should be eliminated at the pleadings stage,
`as the Court does not have subject matter jurisdiction over these claims because there has been no
`injury in fact or damages that can be plausibly alleged and, in any event, the plaintiffs cannot state
`a cause of action on which relief can be granted against Defendants. Even if the Court does not
`dismiss the litigation in full, the issues can be significantly narrowed in this case by a ruling on a
`motion to dismiss and then on a motion to preclude class certification.
`XVI. Scheduling And Trial
`Attached hereto as Exhibit A is the Parties’ proposed schedule of pretrial and trial dates.
`XVII. Disclosure Of Non-Party Interested Entities Or Persons
`The Parties will file their “Certification of Interested Entities or Persons,” pursuant to Civil
`Local Rule 3-15 prior to the June 1, 2021 Case Management Conference.
`XVIII.
`Professional Conduct
`All attorneys of record for the Parties have reviewed the Guidelines for Professional
`Conduct for the Northern District of California.
`
`Dated: May 25, 2021
`
`McNICHOLAS & McNICHOLAS, LLP
`
`
`
`
`
`/s/Patrick McNicholas
`By:
` Patrick McNicholas
`
`Attorneys for Plaintiffs
`KAREN DHANOWA and NILIMA AMIN
`
`11
`11
`Error! Unknown document property name.
`
`JOINT CASE MANAGEMENT STATEMENT – 4:21-CV-00498-JST
`
`1
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`

`

`Case 4:21-cv-00498-JST Document 30 Filed 05/25/21 Page 12 of 13
`
`
`Dated: May 25, 2021
`
`Dated: May 25, 2021
`
`
`Dated: May 25, 2021
`
`
`
`
`
`
`
`THE LANIER LAW FIRM, PC
`
`/s/ Mark Lanier
`By:
` Mark Lanier
`
`Attorneys for Plaintiffs
`KAREN DHANOWA and NILIMA AMIN
`
`
`DOGRA LAW GROUP PC
`
`
`By:
`Shalini Dogra
`Attorneys for Plaintiffs
`KAREN DHANOWA and NILIMA AMIN
`
`
`BAKER & McKENZIE LLP
`
`
`
`/s/ Mark C. Goodman
`By:
`Mark C. Goodman
`Attorneys for Defendants
`SUBWAY RESTAURANTS, INC.,
`FRANCHISE WORLD HEADQUARTERS,
`LLC, and SUBWAY FRANCHISEE
`ADVERTISING TRUST FUND LTD.
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`12
`12
`Error! Unknown document property name.
`
`JOINT CASE MANAGEMENT STATEMENT – 4:21-CV-00498-JST
`
`1
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`

`

`Case 4:21-cv-00498-JST Document 30 Filed 05/25/21 Page 13 of 13
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`
`
`FILER'S ATTESTATION OF CONCURRENCE
`I, Shalini Dogra, attest that I am one of the attorneys for Plaintiffs Nilima Amin and Karen
`Dhanowa. As the ECF user and filer of this document, I attest that concurrence with the filing of
`this document has been obtained from its signatories.
`
`Dated: May 25, 2021
`
`
`
`
`
`Shalini Dogra
`
`By:
`
`
`
`
`
`
`
`13
`13
`Error! Unknown document property name.
`
`JOINT CASE MANAGEMENT STATEMENT – 4:21-CV-00498-JST
`
`1
`2
`3
`4
`5
`6
`7
`8
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`