Case MT/9:21-cv-00044 Document 3 Filed 04/13/21 Page 1 of 22
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`BEFORE THE UNITED STATES
`JUDICIAL PANEL ON MULTIDISTRICT LITIGATION
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`IN RE: BABY FOOD MARKETING, SALES
`PRACTICES, AND PRODUCTS LIABILITY
`LITIGATION
`
`MDL No. 2997
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`BEECH-NUT NUTRITION COMPANY, CAMPBELL SOUP COMPANY, GERBER
`PRODUCTS COMPANY, THE HAIN CELESTIAL GROUP, INC., NURTURE, INC.,
`PLUM, PBC, AND SPROUT FOODS, INC.’S RESPONSE TO MOTION TO TRANSFER
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`This proposed multidistrict litigation seeks to consolidate putative class actions filed
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`against many of America’s leading baby food companies (the “Underlying Actions”). The
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`plaintiffs in these actions allege that the products at issue are mislabeled because their labels do
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`not inform consumers that their ingredients — including common vegetables, fruits, and grains —
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`contain purportedly “unsafe” levels of naturally-occurring heavy metals. The manufacturers
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`expressly dispute these allegations. They maintain that their products are both safe and properly
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`labeled and that there is no applicable scientific or regulatory basis for the plaintiffs’ claims.
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`The manufacturers’ position is consistent with that of the U.S. Food & Drug Administration
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`(“FDA”), which on April 8, 2021 set out its proposed Action Plan for addressing naturally-
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`occurring heavy metals in agricultural products, including baby and toddler foods. The FDA stated
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`that its own testing shows “children are not at an immediate health risk from exposure to toxic
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`elements at the levels found in foods.” See Ex. A. It also explained that these elements are
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`naturally found in the environment and “enter our food supply through our air, water, and soil”
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`such that there are “limits as to how low these levels can be.” Id. The FDA explained that the
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`presence of varying levels of heavy metals is unavoidable, and thus to be expected, whether one
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`is eating baby food, consuming fruits or vegetables purchased from a supermarket or farmers’
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`market, or preparing one’s own food from produce grown in one’s own garden. Id. But given the
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`1
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`Case MT/9:21-cv-00044 Document 3 Filed 04/13/21 Page 2 of 22
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`nutritional value of these products, the safest option — for babies and adults alike — is a varied
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`and balanced diet, not avoiding fruits, vegetables, and grains. Id.; see also FDA, “The Key To A
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`Well-Balanced Diet
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`Is Eating A Variety Of Healthy Foods,” available at
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`https://www.fda.gov/media/146439/download (last accessed Apr. 13, 2021).
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`In the last two months, the Underlying Actions have clustered in a handful of jurisdictions
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`(“home jurisdictions” or “home districts”) corresponding to the locations where the respective
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`manufacturers are headquartered — or, in the case of Gerber Products Company (“Gerber”), where
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`it was headquartered until recently. In most cases, the plaintiffs in the Underlying Actions have
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`filed single-defendant cases in one or more manufacturers’ home districts. In most jurisdictions,
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`the bulk (if not all) of the Underlying Actions against any given at-home defendant have been
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`consolidated before a single judge. And the defendants are in the process of moving the rest of
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`the Underlying Actions into their home jurisdictions — whether by voluntary agreement with the
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`plaintiffs or via motions to transfer (and to sever claims against multiple defendants, if needed).
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`There is no need for this Panel to centralize all of the Underlying Actions into a single
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`multidistrict litigation. The actions against each of the respective manufacturers can be litigated
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`far more efficiently in a single court before a single judge in that defendant’s home district, which
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`is preferable to establishing an industry-wide multidistrict litigation cluttered with different claims
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`against various combinations of named defendants. And there are obvious “alternatives to
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`centralization,” such as intra-district consolidation and transfer of cases under Section 1404, that
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`obviate the need for a multidistrict litigation — just as this Panel suspected. See Docket No. 3.
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`Centralization is particularly inappropriate here because the defendants are competitors
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`who have sourced, manufactured, marketed, packaged, labeled, advertised, and sold hundreds of
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`different products under different brands and product lines. These products contain different
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`2
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`ingredients from different growers, are manufactured in different facilities, and are labeled and
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`advertised differently. Centralizing all of the Underlying Actions before a single judge would have
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`the opposite result envisioned by Section 1407: it would lead to substantial inefficiencies as a
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`single court attempts to grapple with the unique, unrelated facts for each defendant, thereby
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`delaying adjudication of the central merits issues. This Panel routinely declines similar requests
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`for industry-wide consolidation, and it should do so here.
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`In addition to the putative class actions identified by the proponents of this multidistrict
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`litigation (the “Albano Plaintiffs”), there are two individual (non-class action) personal injury
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`claims that have been filed in federal courts. Notably, the Albano Plaintiffs have not proposed to
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`include any individual, non-class, personal injury actions in the proposed MDL, and for good
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`reason.1 Personal injury claims involve a host of complex and medical scientific issues that go
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`well beyond, and are not implicated by, the false advertising class actions. Moreover, by their
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`nature, these personal injury lawsuits will hinge on questions of causation and injury that will vary
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`from product to product and from plaintiff to plaintiff. These lawsuits can be adjudicated
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`separately, and there is no need to include them in any potential MDL of putative class actions
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`asserting false advertising claims. The defendants stand ready to coordinate discovery across all
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`the cases and share discovery that is generated by the individual defendants in their home-court
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`consolidated actions (or any false advertising MDL), eliminating any potential rationale for joining
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`these personal injury cases in a multidistrict litigation.
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`Finally, if the Panel is inclined to consolidate some or all of the Underlying Actions into a
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`single multidistrict proceeding, defendants respectfully suggest that the Panel should assign the
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`1 Nevertheless, on March 17, 2021, the plaintiffs in AG, et al. v. Plum, PBC, et al. (N.D. Cal. Case
`No. 4:21-cv-01600), a non-class, personal injury action, filed a notice of potential tag-along
`action. See Docket No. 15.
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`3
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`Case MT/9:21-cv-00044 Document 3 Filed 04/13/21 Page 4 of 22
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`proceeding to one of the following judges: the Honorable Noel Hillman of the District of New
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`Jersey; the Honorable Mary Kay Vyskocil of the Southern District of New York; or the Honorable
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`Thomas McAvoy of the Northern District of New York. If the Panel is reluctant to assign the
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`MDL to Judge McAvoy due to his senior status, defendants propose the Honorable Brenda K.
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`Sannes as an alternative to Judge McAvoy. All four judges are distinguished, capable judges, and
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`three of the four — Judge Hillman, Judge Vyskocil, and Judge McAvoy — currently preside over
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`a critical mass of “baby food” cases within their respective districts. None of these jurists currently
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`presides over an MDL, and all of these judges are located in geographically central locations that
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`are convenient for the parties and their counsel. All of these factors weigh heavily in favor of
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`designating one of these judges as the transferee judge.
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`BACKGROUND
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`I.
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`Summary of the Underlying Actions.
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`On February 4, 2021, the U.S. House Subcommittee on Economic and Consumer Policy
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`issued a report (the “Report”) concerning purportedly excessive and undisclosed levels of heavy
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`metals, including arsenic, cadmium, lead, and mercury, in many baby and toddler foods. The
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`Report selectively cited information provided by many of America’s leading manufacturers of
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`baby and toddler foods, including Beech-Nut Nutrition Company (“Beech-Nut”), Gerber Products
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`Company (“Gerber”), The Hain Celestial Group, Inc. (“Hain Celestial”), Nurture, Inc. (“Nurture”),
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`Campbell Soup Company (“Campbell”) and its subsidiary Plum, PBC (“Plum”),2 and Sprout
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`Foods, Inc. (“Sprout”). All of these manufacturers dispute the purported findings of the Report.
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`2 Since 2013, Plum has operated as an indirect wholly-owned subsidiary of Campbell. Some of
`the Underlying Actions involving products sold under the Plum brand identify both Campbell and
`Plum as defendants, while others only name Plum. On March 31, 2021, Sun-Maid Growers of
`California announced it had acquired Plum from Campbell. Closure of the sale remains pending.
`4
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`The day after the House Subcommittee issued its Report, plaintiffs began filing lawsuits.
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`To date, the vast majority of these lawsuits are putative class actions that assert false advertising,
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`breach of warranty, and consumer fraud claims on behalf of one or more putative classes of
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`consumers against a single defendant. These lawsuits collectively challenge the labeling of
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`hundreds of baby food products sold under many different product lines and manufactured by over
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`half a dozen different companies.
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`In some cases, the plaintiffs allege that the manufacturers “misrepresented” their products
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`as healthy in light of the allegedly “dangerous” levels of heavy metals found in these products. In
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`other cases, the plaintiffs allege that the products are mislabeled because they fail to disclose the
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`presence of (naturally occurring) heavy metals or the purported “risks” associated with their
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`consumption. Based on these allegations, the plaintiffs assert various statutory and common-law
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`claims on behalf of putative class members — who collectively encompass all consumers in the
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`United States who bought any baby or toddler food product manufactured by any defendant. The
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`manufacturers dispute these allegations, deny that their labeling and marketing practices are false
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`or misleading in any way, and maintain that their products are accurately and properly labeled.
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`As explained in more detail below, the Underlying Actions have largely consolidated
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`themselves in a handful of districts corresponding to the manufacturers’ home districts. Nineteen
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`of the Underlying Actions are pending in the Eastern District of New York, where Hain Celestial
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`is located; 12 are pending in the District of New Jersey, where both Campbell and Plum are
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`currently headquartered and where Gerber was formerly headquartered; 13 (soon to be 14) are
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`pending in the Northern District of New York, where Beech-Nut is headquartered; and nine of the
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`Underlying Actions are pending in the Southern District of New York, where Nurture is currently
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`headquartered. Moreover, each manufacturer has initiated efforts to transfer cases filed in other
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`5
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`courts to its home jurisdiction, either by way of voluntary agreement with the plaintiffs or by
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`motions to transfer venue (and to sever parties, if necessary).
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`B.
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`The Albano Plaintiffs’ Request for a Multidistrict Litigation.
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`On March 8, 2021, the plaintiffs in one of the Underlying Actions, Albano v. Hain Celestial
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`Group, Inc. et al. (the “Albano Action”) filed a motion before this Panel seeking to consolidate all
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`of the Underlying Actions against any defendant (or combination of defendants) into a single
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`multidistrict proceeding in the Eastern District of New York. Docket No. 1. In an effort to
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`highlight the purported similarity of the Underlying Actions, the Albano Plaintiffs lump all of the
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`defendants together and contend that the Underlying Actions are all false advertising lawsuits
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`brought on behalf of putative classes of consumers.3
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`In setting a briefing schedule on the Albano Plaintiffs’ motion, this Panel directed the
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`parties to “address what steps they have taken to pursue alternatives to centralization,” such as
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`“informal coordination” and “seeking Section 1404 transfers of one or more of the subject cases.”
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`Docket No. 3. As explained in more detail below, those “alternatives to centralization” obviate
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`the need for a multidistrict litigation here.
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`ARGUMENT
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`I.
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`This Panel Should Decline to Consolidate the Underlying Actions, as There Are
`Alternatives to Centralization That Obviate the Need for a Multidistrict Litigation.
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`In their motion, the Albano Plaintiffs suggest that the only alternative to a multidistrict
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`litigation is for dozens of cases to proceed individually — resulting in duplicative discovery,
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`3 For example, they claim that each case “alleges that Defendants’ food labeling was false and
`misleading and fails to disclose material facts” and that each case “asserts economic injuries arising
`from Defendants’ wrongful conduct.” Docket No. 1-1 (“Mem.”) at 1 (emphasis added). They also
`claim that “the pending actions all seek class certification” and assert claims for “unfair business
`practices, violations of state consumer protection statutes, breach of implied warranty of
`merchantability, unjust enrichment, and fraudulent concealment and omission.” Id. at 8.
`6
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`conflicting rulings, and other purported inefficiencies. See Mem. at 10-12. But this is a false
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`dichotomy, as it overlooks the fact that the Underlying Actions have already been largely
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`consolidated into a handful of districts, and most assigned to a single judge within each district,
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`without this Panel’s intervention. To the extent that other cases are pending outside the defendants’
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`home districts, those defendants are already in the process of transferring those cases to their
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`respective home jurisdictions — whether through voluntary cooperation with plaintiffs’ counsel
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`or through motions to transfer pursuant to the first-to-file doctrine and/or 28 U.S.C. § 1404. These
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`are the precise “alternatives to centralization” that this Panel directed the parties to address, and
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`they illustrate that a multidistrict litigation is not necessary here. See Docket No. 3
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`It is well-established that “centralization under Section 1407 should be the last solution
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`after considered review of all other options.” In re Best Buy Co., Inc. Cal. Song-Beverly Credit
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`Card Act Litig., 804 F. Supp. 2d 1376, 1378 (J.P.M.L. 2011). “In particular, we repeatedly have
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`noted that where a reasonable prospect exists that the resolution of a Section 1404 motion or
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`motions could eliminate the multidistrict character of a litigation, transfer under Section 1404 is
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`preferable to Section 1407 centralization.” In re Hudson’s Bay Co. Customer Data Sec. Breach
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`Litig., 326 F. Supp. 3d 1372, 1373 (J.P.M.L. 2018) (citations and internal quotation marks
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`omitted); see also In re Gerber Probiotic Prod. Mktg. & Sales Practices Litig., 899 F. Supp. 2d
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`1378, 1380 (J.P.M.L. 2012) (“[T]ransfer under Section 1404 may moot the multidistrict character
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`of a litigation and allow a consolidated proceeding in one court with jurisdiction over the pretrial,
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`trial, and post-trial aspects of the litigation.”).
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`As in Best Buy, Hudson’s Bay, and Gerber Probiotic, there is no need for multidistrict
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`consolidation because
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`the Underlying Actions have already substantially consolidated
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`7
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`themselves.4 There is a critical mass of cases against each defendant in the jurisdiction where it is
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`(or, in Gerber’s case, recently was) headquartered, and each defendant has taken, and will continue
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`to take, measures to move the remaining claims against it into its home district:
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`Beech-Nut. Thirteen of the 24 Underlying Actions against Beech-Nut are pending in the
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`Northern District of New York, where Beech-Nut is headquartered, before Judge McAvoy, and a
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`recently-filed fourteenth case (Loggins) will be transferred there from the Middle District of
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`Florida pursuant to the stipulation of the parties. Judge McAvoy consolidated all then-pending
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`cases and ordered that any future cases asserting similar claims be assigned to him. See Ex. B.
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`Beech-Nut is taking steps, including by stipulation and/or motion (whether contested or
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`unopposed), to have the remaining cases pending in other federal district courts either dismissed
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`or transferred to the Northern District of New York. Of the ten remaining cases, Beech-Nut has:
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`(1) moved to dismiss one (A.G.); (2) is submitting pre-motion letters in two in advance of motions
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`to sever and transfer (Albano and Lawrence); (3) has moved to sever and transfer one (Garces)
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`and will shortly move to sever and transfer another two (Baker and Walls); and (4) has not yet
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`been served in four (Andrews, Ibert, Johnson, and Smith). Beech-Nut anticipates using these same
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`informal processes and/or procedural rules to transfer and consolidate future-filed cases, if any.
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`Campbell/Plum. There are 13 Underlying Actions pending against Campbell and/or Plum,
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`ten of which do not name any other manufacturer defendants. Five of the Campbell/Plum-only
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`4 Defendants are aware of two cases filed in the Northern District of California in which the
`plaintiffs assert that their children experienced developmental abnormalities as a result of
`consuming the baby foods manufactured by multiple defendants. AG et al. v. Plum, PBC et al.,
`Case No. 4:21-cv-1600; IM et al. v. Plum, PBC et al, Case No. 4:21-cv-2066. These two cases —
`and any additional yet-to-be filed similar individual personal injury cases — are poor candidates
`for consolidation because they allege different claims that hinge on highly individualized issues of
`causation and injury. See infra § III. Defendants maintain that any such cases would be
`particularly ill-suited for centralization.
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`8
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`Case MT/9:21-cv-00044 Document 3 Filed 04/13/21 Page 9 of 22
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`cases are pending in the Northern District of California (where a consolidated complaint is
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`expected to be filed); one is pending in the Southern District of California; and the remaining four
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`are pending in the District of New Jersey (where a consolidated complaint is also expected to be
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`filed). Campbell/Plum has begun the process of transferring the cases against it, including the
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`cases filed in California, to the District of New Jersey. Campbell/Plum reasonably anticipates that,
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`absent a multidistrict litigation, all of the Underlying Actions solely against Campbell/Plum can
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`be successfully consolidated in the District of New Jersey and will proceed as a single case with
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`common pleadings, motion practice, and discovery.
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`Gerber. Fourteen of the 25 Underlying Actions against Gerber (two of which have been
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`consolidated), including all but one of the actions in which Gerber is the sole defendant, are
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`pending before the Honorable Claire C. Cecchi in the District of New Jersey,5 where Gerber was
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`formerly headquartered until 2019 (eight actions), or the Honorable Liam O’Grady in the Eastern
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`District of Virginia, where Gerber is currently headquartered (six actions). The first-filed cases
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`against Gerber were filed in the District of New Jersey, where a motion to consolidate all of the
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`cases against Gerber there — which Gerber has not opposed — is pending, and to which the U.S.
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`District Court for the District of Minnesota recently transferred one of the Underlying Actions
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`against Gerber (McNealy) pursuant to the parties’ stipulation. Similarly, two of the cases against
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`Gerber pending in the Eastern District of Virginia have been consolidated. Another was originally
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`filed in the Middle District of Florida, and subsequently voluntarily dismissed and re-filed in the
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`Eastern District of Virginia. Gerber has initiated the process of transferring actions/claims pending
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`against Gerber outside of Gerber’s home jurisdictions to the District of New Jersey, including
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`actions currently pending in the Central District of California (Robbins), Northern District of
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`5 One action is awaiting assignment, but Gerber expects it to be assigned to Judge Cecchi.
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`Case MT/9:21-cv-00044 Document 3 Filed 04/13/21 Page 10 of 22
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`Illinois (Garces), Southern District of Florida (Kelly), and Northern District of New York
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`(Eldridge).6
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`Hain Celestial. Nineteen of the 26 Underlying Actions against Hain Celestial (including
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`Stewart, the first-filed federal lawsuit against Hain Celestial) are pending in the Eastern District of
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`New York. The plaintiffs in the Stewart action have filed a motion to consolidate all 19 cases into
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`a single intra-district proceeding before the Honorable Joanna Seybert, and Hain Celestial did not
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`oppose that motion. See Exs. C-D. Hain Celestial accordingly anticipates that, absent a
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`multidistrict litigation, all of the Underlying Actions pending in the Eastern District of New York
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`will proceed as a single case with common pleadings, motion practice, and discovery.
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`Furthermore, Hain Celestial anticipates that the majority of the claims asserted against it
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`in the Underlying Actions pending outside the Eastern District of New York will ultimately be
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`transferred into that district. At least three plaintiffs, Alyssa Mays, Marla Micks, and Kendra
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`Anderson, voluntarily dismissed their claims against Hain Celestial — which they originally
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`brought in the Southern District of New York, the Northern District of Illinois, and the District of
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`Colorado, respectively — and re-filed them in the Eastern District of New York. In other cases,
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`Hain Celestial has filed motions to transfer cases pending in other districts — including the Smith
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`action in the Western District of Missouri and the claims asserted against it in the Garces action
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`in the Northern District of Illinois. And to the extent other plaintiffs file new cases, Hain Celestial
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`anticipates that they will also be filed in, or transferred to, the Eastern District of New York.
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`Nurture. All but one of the cases filed only against Nurture are pending in the Southern
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`District of New York. The only other Nurture-only case (Gothot) was filed days ago in the
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`6 Gerber anticipates moving to transfer venue of the Eastern District of Virginia actions to the
`District of New Jersey, and regardless expects the Eastern District of Virginia and District of New
`Jersey cases to be consolidated in one of those districts without the need for an MDL proceeding.
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`Case MT/9:21-cv-00044 Document 3 Filed 04/13/21 Page 11 of 22
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`Northern District of Ohio. Nurture has not been served in that action and will seek to transfer it to
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`the Southern District of New York, either by party agreement or motion. Six of the nine Nurture-
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`only cases are consolidated before Judge Mary Kay Vyskocil. Nurture anticipates that Judge
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`Vyskocil will soon be assigned all of the Nurture actions pending in the Southern District of New
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`York, as well as the recently-filed Ohio action, because the plaintiffs in the first-filed federal
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`lawsuit, Stewart v. Nurture Inc., have moved to consolidate before Judge Vyskocil the actions
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`against Nurture currently pending in the Southern District of New York “as well as any
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`subsequently filed or transferred related actions.” See Ex. E. Nurture did not oppose that motion.
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`Nurture further anticipates that the majority of the Underlying Actions pending elsewhere
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`against Nurture will be severed and transferred to the Southern District of New York. The
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`plaintiffs in one action (Wallace), which was pending in the District of New Jersey, voluntarily
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`dismissed their lawsuit and have indicated that they may re-file against Nurture in the Southern
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`District of New York. And Nurture has already filed two motions to sever and transfer in the
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`Robbins action, which is pending in the Central District of California, and in the Garces action,
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`which is pending in the Northern District of Illinois. Nurture anticipates filing similar motions as
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`necessary.
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`Sprout. Sprout has been named in two of the Underlying Actions asserting false advertising
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`claims.7 One has been filed in the Eastern District of New York, and the other has been filed in
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`the District of Connecticut. Sprout anticipates that these Underlying Actions will ultimately be
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`transferred into the same district by party agreement or motion to transfer.
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`7 In addition to the individual personal injury cases noted above in footnote 4, Sprout is also aware
`of one additional class action filed against it in the Northern District of California. Key v. Sprout
`Foods, Case No. 3:21-cv-2391.
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`In short, there is no risk that the Underlying Actions will be scattered throughout the
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`country and proceed on different schedules if they are not consolidated by the Panel into a
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`multidistrict litigation. Rather, the vast majority (if not all) of these cases will go forward as
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`consolidated proceedings in the defendants’ home districts, and the defendants can transfer — and
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`have begun transferring — any subsequently-filed cases there as well. These “alternatives to
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`centralization” are far superior to a single multidistrict litigation, particularly since establishing
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`such a proceeding would require most defendants to litigate outside their home districts.
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`II.
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`This Panel Should Decline to Consolidate the Underlying Actions Against Competing
`Defendants into a Single Industry-Wide Multidistrict Litigation.
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`This Panel has repeatedly emphasized that it is “typically hesitant to centralize litigation
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`against multiple, competing defendants which marketed, manufactured, and sold similar
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`products.” In re Yellow Brass Plumbing Component Prods. Liab. Litig., 844 F. Supp. 2d 1377,
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`1378 (J.P.M.L. 2012); see also, e.g., In re Credit Card Payment Prot. Plan Mktg. & Sales Practices
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`Litig., 753 F. Supp. 2d 1375, 1375-76 (J.P.M.L. 2010) (declining to centralize “industry-wide
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`litigation” involving competing defendants who “offered several different products, which were
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`marketed in different ways”); In re Tropicana Orange Juice Mktg. & Sales Practices Litig., 867
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`F. Supp. 2d 1341, 1342 (J.P.M.L. 2012) (similar). Indeed, this Panel has recognized that “creating
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`an industry-wide MDL” against competing defendants typically generates “few efficiencies,”
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`particularly where the “factual commonality across the actions appears to be superficial at best.”
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`In re Secondary Ticket Mkt. Refund Litig., 481 F. Supp. 3d 1345, 1346 (J.P.M.L. 2020) (noting
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`that, under these circumstances, “[c]reating an industry-wide MDL for . . . all defendants would
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`seem to complicate pretrial proceedings more than it would streamline them”).
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`The Albano Plaintiffs’ motion is a textbook example of why industry-wide consolidation
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`is disfavored. The defendants in the Underlying Actions each manufacture dozens of infant and
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`Case MT/9:21-cv-00044 Document 3 Filed 04/13/21 Page 13 of 22
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`toddler foods, often under distinct product lines. Each defendant sources ingredients from different
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`suppliers; manufactures its products using its own proprietary ingredient specifications and
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`formulations; has distinct packaging, quality control, and supply chain processes; and labels,
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`markets, and advertises its products differently. As a result, “the individual issues that result from
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`the differences among each defendant’s [products] with respect to product design, development,
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`testing, . . . and marketing will predominate over the common issues.” In re Power Morcellator
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`Prod. Liab. Litig., 140 F. Supp. 3d 1351, 1353-54 (J.P.M.L. 2015); see also In re Watson Fentanyl
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`Patch Prod. Liab. Litig., 883 F. Supp. 2d 1350, 1351 (J.P.M.L. 2012) (“Each group of cases against
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`each manufacturer will involve unique product- and defendant-specific issues (such as the different
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`product designs, manufacturing processes, regulatory histories, and company documents and
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`witnesses) that will overwhelm the few common issues . . . .”).
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`There are accordingly no meaningful efficiencies to be gained from consolidating the
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`claims against each defendant — which will necessitate different discovery, motion practice, and
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`pretrial proceedings — into a single MDL. If anything, an industry-wide MDL will simply inject
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`additional case management hurdles, such as the need to protect the confidential trade secret
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`information of each defendant and the need to establish separate tracks for each defendant, that
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`would be unnecessary if the cases were to proceed separately in each defendant’s home
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`jurisdiction. See, e.g., In re CP4 Fuel Pump Mktg., Sales Practices, & Prods. Liab. Litig., 412 F.
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`Supp. 3d 1365, 1367 (J.P.M.L. 2019) (emphasizing that “centralizing competing defendants in the
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`same MDL . . . would complicate case management” due to “the need to protect trade secret and
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`confidential information” and “the possible need for separate discovery and motion tracks”).
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`Moreover, the fact that the Underlying Actions overwhelmingly consist of false advertising
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`lawsuits makes a multi-defendant MDL even more inappropriate, as false advertising claims — by
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`their nature — are inherently unsuited to multi-defendant proceedings. It is not just the defendants
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`who realize this fact. To the contrary, dozens of plaintiffs in the Underlying Actions have
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`recognized that their claims are most appropriately brought as single-defendant lawsuits. To that
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`end, those plaintiffs have filed separate lawsuits against different manufacturers in each
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`defendant’s home jurisdiction. See Ex. F (chart of single-defendant lawsuits filed by the same
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`plaintiff against multiple defendants). There is no reason for this Panel to lump those single-
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`defendant lawsuits into an unwieldy industry-wide proceeding.
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`III. The Panel Should Not Centralize the Smattering of Individual Personal Injury and
`Products Liability Complaints with Any False Advertising MDL.
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`Leaving aside that there is no need for any multidistrict consolidation, this Panel should
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`decline to centralize the small number of individual product liability complaints alleging personal
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`injury from ingestion of some of the defendants’ products. Apart from the limited and manageable
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`number of such claims currently pending, these lawsuits by their nature are uniquely ill-suited for
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`a multidistrict litigation, as “the injuries alleged in each case appear to be highly plaintiff-specific.”
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`In re Linear Gadolinium-Based Contrast Agents Prods. Liab. Litig., 341 F. Supp. 3d 1381, 1382
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`(J.P.M.L. 2018); see also, e.g., In re Electrolux Dryer Prods. Liab. Litig., 978 F. Supp. 2d 1376,
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`1377 (J.P.M.L. 2013) (denying centralization where “individualized facts . . . will predominate
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`over the common factual issues alleged by plaintiffs”); In re Spray Polyurethane Foam Insulation
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`Prods. Liab. Litig., 949 F. Supp. 2d 1364, 1364 (J.P.M.L. 2013) (similar).
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`The Panel’s rejection of invitations to consolidate includes similar “tainted product” cases.
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`See In re NE Contaminated Beef Prods. Liab. Litig., 856 F. Supp. 2d 1354, 1355 (J.P.M.L. 2012).
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`Indeed, the Panel has specifically declined to consolidate a similar set of cases involving allegedly
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`tainted infant formula, finding that “individual facts contained in these actions” — such as “the
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`particular product each plaintiff purchased” and “any injuries that consumption of the product
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`caused” — “will predominate over any alleged common fact questions.” In re Abbott Labs., Inc.
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`Similac Prods. Liab. Litig., 763 F. Supp. 2d 1376, 1377 (J.P.M.L. 2011).
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`Here, it should be clear that any attempt to characterize the personal injury claims as
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`primarily driven by “common facts” is not well-taken. The fact that these lawsuits generally allege
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`that each child consumed some amount of some type of baby or toddler food containing some
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`ingredient or combination of ingredients with some alleged (and inevitably varying) level of heavy
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`metals for some period of time does not make them appropriate candidates for consolidation.
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`Inde