Case CAN/4:21-cv-02066 Document 12 Filed 05/20/21 Page 1 of 9
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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
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`MDL NO. 2997
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`INTERESTED PARTY WALMART INC.’S RESPONSE TO PLAINTIFFS’ MOTION
`FOR TRANSFER OF ACTIONS TO THE EASTERN DISTRICT OF NEW YORK
`PURSUANT TO 28 U.S.C. § 1407
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`Defendant Walmart Inc. (“Walmart”) joins the Beech-Nut Nutrition Company, Campbell
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`Soup Company, Gerber Products Company, The Hain Celestial Group, Inc., Nurture, Inc., Plum,
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`PBC, and Sprout Foods, Inc.’s Response to Motion to Transfer, MDL No. 2997, ECF No. 3 (the
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`“Joint Opposition”), and submits this Interested Party Response (the “Response”) to Plaintiffs’
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`Motion for Transfer of Actions to the Eastern District of New York Pursuant to 28 U.S.C. § 1407,
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`MDL No. 2997, ECF No. 1 (the “Motion”).
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`INTRODUCTION
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`Since three plaintiffs in one case (the “Albano Plaintiffs”) moved to consolidate what is
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`now nearly 90 different lawsuits against a multitude of defendants asserting claims under the laws
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`of numerous jurisdictions (the “Underlying Actions”), plaintiffs and defendants across the universe
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`of Underlying Actions have opposed the Motion. For good reason—centralization of the
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`Underlying Actions is inappropriate and does not achieve any of the objectives for which 28 U.S.C.
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`section 1407 or Rule 6.2(a) of the Rules of Procedure of the United States Judicial Panel on
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`Multidistrict Litigation were enacted. Each Underlying Action presents complex, individualized
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`questions that outweigh potential common questions, and centralization will not further the
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`convenience of the parties or witnesses, or advance the just and efficient conduct of the Underlying
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`Actions. Further, parties to the respective Underlying Actions are already working to consolidate
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`Case CAN/4:21-cv-02066 Document 12 Filed 05/20/21 Page 2 of 9
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`and coordinate aspects of those proceedings within the individual districts where they are pending,
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`obtaining any efficiencies to be had through centralization in a single multidistrict litigation
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`(“MDL”).
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`Even if this Panel is inclined to grant the Motion, the Walmart Actions (defined below)
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`should be excluded.
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` Unlike every other defendant in the Underlying Actions—and
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`notwithstanding mistaken allegations in several complaints to the contrary—Walmart does not
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`manufacture any of the baby food products at issue in the Underlying Actions. To the contrary,
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`Walmart is a retailer only. Including a retailer in a manufacturer MDL would add unnecessary
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`complexity to what is already likely to be an unwieldy litigation. Further, Walmart is named in
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`only two of the nearly 90 Underlying Actions; in one of those, Walmart is the sole defendant, and
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`in the other, the plaintiff seeks damages for personal injuries that are highly individualized and
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`unique to that plaintiff. Thus, even if this Panel centralized the Underlying Actions, the Walmart
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`Actions can and should be excluded.
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`BACKGROUND
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`As a grocer/retailer, Walmart sells a number of infant and baby food products in its stores,
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`including its private label Parent’s Choice and Parents’ Choice Organic brand infant and baby
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`food. Walmart does not manufacture Parent’s Choice or any other baby food products, including
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`those at issue in the Underlying Actions.
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`The Underlying Actions commenced after The U.S. House of Representatives
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`Subcommittee on Economic and Consumer Policy, Committee on Oversight and Reform
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`(“Subcommittee”) released a report on heavy metals in baby foods on February 4, 2021, which
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`focused overwhelmingly on manufacturers of baby food products. The report’s discussion of
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`Walmart was largely limited to a reference to two Parent’s Choice products, neither of which was
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`alleged to have violated any food safety regulations or guidance relating to heavy metals.1 As of
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`the date of this filing, nearly 90 Underlying Actions have been filed.
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`On March 8, 2021, the Albano Plaintiffs filed the Motion. At that time, Walmart had not
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`been named as a defendant in any Underlying Action. Since then, Walmart has been named in
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`two cases that have been tagged for inclusion if an MDL is formed: (1) Shipra Kochar v. Walmart,
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`Inc., Case No. 3:21-cv-02343-JD (N.D. Cal. Mar. 31, 2021) (“Kochar”); and (2) IM, individually
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`and represented by her mother and guardian ad litem Allison Ibert v. Plum, PBC, et al., Case No.
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`4:21-cv-02066-YGR (N.D. Cal. Mar. 24, 2021) (“IM” and together with Kochar, the “Walmart
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`Actions”)2. Kochar is a putative class action in which plaintiff alleges fraud-based and consumer-
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`protection claims against Walmart. No other defendants are named in that suit. In IM, plaintiff
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`1 On August 16, 2018, consumerreports.org (“Consumer Reports”) reported that 50 packaged
`baby foods, only one of which was a Parent’s Choice baby food product sold by Walmart,
`contained at least some detectable amount of arsenic, mercury, cadmium, and lead—naturally
`occurring elements found in food, water, air, and soil. In October 2019, the advocacy group
`Healthy Babies Bright Futures (“Healthy Babies”) released a report regarding the presence of
`four heavy metals (arsenic, lead, cadmium, and mercury) in 168 individual baby food items
`sold under 61 brand names by 17 retailers. Only seven of those 168 items were Parent’s Choice
`products. The Subcommittee report referenced two of the products identified in the Healthy
`Babies’ Report in its discussion of Walmart.
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`2 Walmart is also the sole defendant in two additional lawsuits, neither of which has been
`designated a tag-along action as of the date of this filing: (1) Teresa Wilson, et al. v. Walmart,
`Inc., Case No. 3:21-cv-00082-DPM (E.D. Ark. Apr. 28, 2021) (“Wilson”), and (2) Asha Davis,
`on behalf of herself and all others similarly situated v. Walmart, Inc., Case No. 3:21-cv-03674
`(N.D. Cal. May 17, 2021) (“Davis”). In Wilson, plaintiffs assert twelve causes of action against
`Walmart Inc. on behalf of themselves and a putative nationwide class and ten subclasses of
`similarly situated individuals from ten states. In Davis, the plaintiff asserts five causes of
`action against Walmart Inc. on behalf of herself and a putative nationwide class and two
`subclasses of similarly situated individuals from seven states. Both Wilson and Davis are
`premised on allegedly misleading, deceptive and unfair business practices with respect to
`marketing, advertising, labeling, packaging, and sale of baby food products. Walmart also was
`named as a defendant in Jenna Johnson, on behalf of herself and all others similarly situated
`v. Beech-Nut Nutrition Co., et al., Case No. 2:21-cv-02096-EFM-JPO (D. Kan.), but the
`plaintiff voluntarily removed Walmart as a defendant in her amended complaint.
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`alleges strict products liability and negligence claims against Walmart and several baby food
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`manufacturers, including Plum, PBC, Hain Celestial Group, Inc., Gerber Products Company,
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`Nurture, Inc., Beech-Nut Nutrition Company, and Sprout Foods, and claims that consuming
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`defendants’ baby food products caused plaintiff to suffer physical injury and bodily impairment.
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`See IM, ECF No. 1 ¶¶ 81-86.
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`ARGUMENT
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`I.
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`INVOLVING COMPETING AND CROSS-SECTOR
`A SINGLE MDL
`DEFENDANTS IS INAPPROPRIATE.
`A.
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`Issues Outweigh Common Questions and Render
`Individualized
`Centralization Inefficient and Wasteful.
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`Section 1407 permits centralizing proceedings only upon a determination that
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`centralization “will be for the convenience of parties and witnesses and will promote the just and
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`efficient conduct of such actions.” 28 U.S.C. § 1407(a). This Panel has rejected requests to
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`centralize cases exactly like the Underlying Actions because individualized issues predominate
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`over potential common questions across the cases, rendering centralized proceedings inefficient
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`and wasteful. See 28 U.S.C. § 1407. Walmart agrees with the Joint Opposition that stark
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`differences among the Underlying Actions are precisely why the Panel should be hesitant to
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`centralize litigation against multiple, competing defendants involving different products. See Joint
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`Opposition at 12-14.
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`For example, in In re Credit Card Payment Prot. Plan Mktg. & Sales Practices Litig.,
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`753 F. Supp. 2d 1375 (J.P.M.L. 2010), the Panel declined to centralize litigation over allegedly
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`deceptive marketing of defendants’ debt cancellation and/or suspension products because each
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`case involved “different credit card issuers regarding different products,” each of which were
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`“marketed in different ways and subject to different disclosures.” Id. at 1375-76. Similarly, in In
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`re Tropicana Orange Juice Mktg. and Sales Practices Litig., 867 F. Supp. 2d 1341 (J.P.M.L.
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`2012), this Panel declined to centralize claims against multiple manufacturers and retailers of not-
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`from-concentrate orange juice because the actions involved “different products, subject to
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`potential different methods of pasteurizing and processing, different advertisements, and different
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`putative classes of consumers who purchased each product.” Id. at 1342. The same result is
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`warranted here.
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`The Underlying Actions involve dozens of different baby foods, manufactured by
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`competing defendants, using raw ingredients from different sources, marketed to distinct age
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`groups, with different packaging and advertising in states across the country. Further, each
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`plaintiff’s alleged damages—which differs depending on the type of baby food, when and how
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`much was consumed, and each baby’s underlying health—and allegedly misleading marketing and
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`labeling, are also highly individualized. These case-specific issues render the Underlying Actions
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`“markedly different” from other litigation this Panel has previously centralized. See, e.g., In re
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`Yellow Brass Plumbing Component Prods. Liab. Litig., 844 F. Supp. 2d 1377 (J.P.M.L. 2012)
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`(denying centralization of actions against competing defendants that manufactured multiple
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`products); In re Ambulatory Pain Pump-Chondrolysis Prods. Liab. Litig., 709 F. Supp. 2d 1375
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`(J.P.M.L. 2010) (denying centralization because “individual issues of causation and liability
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`continue to appear to predominate” where different manufacturers crafted different products and
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`plaintiffs have different medical histories).
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`Centralization also is inappropriate because there are significant variations among the law
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`that potentially applies in each Underlying Action. In In re Title Ins. Real Estate Settlement Procs.
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`Act (RESPA) & Antirust Litig., 560 F. Supp. 2d 1374, 1376 (J.P.M.L. 2008), the Panel rejected
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`centralizing 25 actions because the related cases “encompass[ed] different regulatory regimes in
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`the states in which actions [were] pending along with variances in insurance regulation and law in
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`each state.” The Panel should do so here as well, as the applicable law in the Underlying Actions
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`may turn on the state in which each plaintiff and putative class member was exposed to particular
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`marketing materials or product labels, or purchased or consumed the baby food at issue. See In re
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`HealthExtras Ins. Mktg. & Sales Practices Litig., 24 F. Supp. 3d 1376, 1376–77 (J.P.M.L. 2014)
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`(rejecting centralization because legality of insurance policies at issue were subject to respective
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`state laws).
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`Indeed, several plaintiffs in the Underlying Actions oppose centralization for these very
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`reasons. See, e.g., Plaintiffs Richard Chase, Stacey Chase and Muslin Pierre-Louis’ Response in
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`Opposition to the Albano Plaintiffs’ Motion for Transfer of Actions to the Eastern District of New
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`York Pursuant to 28 U.S.C. § 1407, MDL No. 2997, ECF No. 106 at 1 (opposing centralization
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`because “the issues unique to each individual defendant are even more significant.”); Stewart
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`Plaintiffs’ Joint Response in Opposition to the Albano Plaintiffs’ Motion to Transfer Actions to the
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`Eastern District of New York Pursuant to 28 U.S.C. § 1407, MDL No. 2997, ECF No. 115 at 1
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`(describing any purported commonality in the Underlying Actions as “superficial”).
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`B.
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`A Single MDL is Not Necessary to Coordinate Pre-Trial Proceedings.
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`“[C]entralization under Section 1407 should be the last solution after considered review of
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`all other options.” In re Best Buy Co., Inc., Cal. Song-Beverly Credit Card Act Litig., 804 F. Supp.
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`2d 1376, 1378 (J.P.M.L. 2011). Here, most, if not all, of the Underlying Actions are likely to go
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`forward as consolidated proceedings in defendants’ respective home districts, and defendants in
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`many of those Underlying Actions have already begun transferring subsequently filed cases to
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`those districts. See Joint Opposition at 6-12. In this way, the parties can minimize the risk of
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`duplicative discovery, conflicting rulings, or other inefficiencies without centralization.
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`Given this ability to coordinate without the substantial inefficiencies that result from
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`centralized litigation, centralization is not warranted. For example, in In re Title Ins. Real Estate
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`Settlement Procs. Act (RESPA) and Antitrust Litig., 560 F. Supp. 2d 1374 (J.P.M.L. 2008), the
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`Panel denied centralization because the parties could seek “consolidation of actions pending in
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`multiple districts within the same state” and “minimize whatever possibilities there might be of
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`duplicative discovery and/or inconsistent pretrial rulings.” Id. at 1376. See also In re Best Buy
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`Co., Inc., Cal. Song-Beverly Credit Card Act. Litig., 804 F. Supp. 2d 1376 (J.P.M.L. 2011)
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`(denying centralization because the proponents have not met their burden of demonstrating its
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`need, “particularly given the availability of Section 1404”). The parties are working toward that
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`same goal here, obviating the need for industry-wide centralization.
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`II.
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`AS A RETAILER NAMED IN ONLY TWO UNDERLYING ACTIONS,
`WALMART SHOULD BE EXCLUDED FROM ANY CENTRALIZED MDL
`PROCEEDING.
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`To the extent this Panel is inclined to centralize the Underlying Actions for pretrial
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`proceedings, the Walmart Actions—Shipra Kochar v. Walmart, Inc., Case No. 3:21-cv-02343-JD
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`(N.D. Cal. Mar. 31, 2021); and IM, individually and represented by her mother and guardian ad
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`litem Allison Ibert v. Plum, PBC, et al., Case No. 4:21-cv-02066-YGR (N.D. Cal. Mar. 24, 2021)
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`—should be excluded. First, this Panel has rejected requests to centralize actions, like the
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`Underlying Actions, where each defendant is named in only a small subset of cases. For example,
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`in In re Ambulatory Pain Pump-Chondrolysis Prods. Liab. Litig., 709 F. Supp. 2d 1375 (J.P.M.L.
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`2010), “[m]ost, if not all, defendants [were] named in only a minority of actions,” with one named
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`in just four, and another in only one, of 102 actions. Id. at 1377 n.2. Similarly, Walmart is a party
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`to just two of the approximately 90 Underlying Actions—IM and Kochar.
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`Second, including Walmart in centralized proceedings with the manufacturer defendants
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`would lead to additional inefficiencies and increase the individualized issues an MDL court would
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`need to decide. This Panel has rejected centralization of actions involving both retailers and
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`manufacturers of allegedly defective products in light of the complexities inherent in such
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`litigation. Indeed, in In re Tropicana Orange Juice Mktg. and Sales Practices Litig., 867 F. Supp.
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`2d 1341, 1342 (J.P.M.L. 2012), the Panel rejected centralization specifically because “some of the
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`defendants that Veal seeks to include in this litigation are retailers, not producers, of not-from-
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`concentrate orange juice.” Echoing the Panel’s hesitation in that case, the court presiding over the
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`federal opioids multidistrict litigation recently expressed, “as it has several times, that a case
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`asserting 10 or more claims with 20 more defendants from all the various interconnected sectors
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`of the pharmaceutical industry would be unworkable.” In Re: Nat’l Prescription Opiate Litig.,
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`No. 1:17-md-02804, ECF No. 3677 (N.D. Ohio Apr. 5, 2021) at 3 n.5 (emphasis added). The
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`number of individualized issues among the cases involving manufacturers is already too
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`cumbersome for centralization; adding a retailer that does not manufacture baby foods only
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`exacerbates this complexity without any offsetting efficiencies.
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`For example, how Walmart packages, labels and advertises its Parent’s Choice products
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`—which underpin the fraud-based and consumer-protection claims asserted in Kochar—has no
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`bearing on whether any of the manufacturer defendants are liable for the products liability or fraud-
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`based claims asserted against them in other Underlying Actions. And there are no allegations in
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`Kochar that the plaintiff purchased non-Walmart baby food products.
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`The other Underlying Action involving Walmart—IM—alleges personal injuries that are
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`“uniquely ill-suited” for multidistrict litigation, as “the injuries alleged in [that] case appear to be
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`highly plaintiff-specific.” Joint Opposition at 14-16 (quoting In re Linear Gadolinium-Based
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`Contrast Agents Prods. Liab. Litig., 341 F. Supp. 3d 1381, 1382 (J.P.M.L. 2018)). The extent of
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`liability and damages in IM will necessarily turn on what and how much baby food IM ate, the
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`ingredients of that specific baby food, when IM consumed that baby food, IM’s underlying health,
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`and IM’s damages, if any.3
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`Under these circumstances, lumping a retailer into a centralized proceeding with
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`manufacturers does not foster resolution of the Walmart Actions, let alone any other Underlying
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`Actions, and would prove “unworkable.” In Re: Nat’l Prescription Opiate Litig., No. 1:17-md-
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`02804, ECF No. 3677 (N.D. Ohio Apr. 5, 2021)) at 3 n.5; see also In re: Tropicana Orange Juice
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`Mktg. and Sales Practices Litig., 867 F. Supp. 2d 1341 (J.P.M.L. 2012); In re: Honey Prod. Mktg.
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`and Sales Practices Litig., 883 F. Supp. 2d 1333 (J.P.M.L. 2012) (denying centralization of actions
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`naming different honey retailers and producers as defendants).
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`CONCLUSION
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`For these reasons, Walmart respectfully requests that the Panel deny the Motion. In the
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`alternative, to the extent the Panel grants the Motion, Walmart respectfully requests that the
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`Walmart Actions be excluded from any centralized proceeding.
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`Dated: May 20, 2021
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`Respectfully submitted,
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`/s/ Donna M. Welch
`Donna M. Welch
`KIRKLAND & ELLIS LLP
`300 North LaSalle
`Chicago, IL 60654
`Tel: (312) 862-2000
`Fax: (312) 862-2200
`Email: dwelch@kirkland.com
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`Attorneys for Defendant Walmart Inc.
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`Indeed, the plaintiff in IM opposes centralization of personal injury actions, including because
`there is a “small number” of such actions, and because they will “focus on medical causation and
`exposure” and “will require different experts and discovery” than other actions. See Interested
`Party Response in Partial Support of Motion for Transfer of Actions Pursuant to 28 U.S.C. § 1407
`For Coordinated or Consolidated Pretrial Proceedings, MDL No. 2997 at ECF No. 198 at 5.
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