Case NYE/2:21-cv-01045 Document 26 Filed 06/07/21 Page 1 of 6
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`UNITED STATES JUDICIAL PANEL
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`MULTIDISTRICT LITIGATION
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`IN RE: BABY FOOD MARKETING, SALES PRACTICES
`AND PRODUCTS LIABILITY LITIGATION
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`ORDER DENYING TRANSFER
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`MDL No. 2997
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`Before the Panel:* Plaintiffs in the Eastern District of New York Albano action move
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`under 28 U.S.C. § 1407 to centralize this litigation in the Eastern District of New York. This
`litigation consists of 38 actions pending in ten districts, as listed on Schedule A.1 These actions
`allege that manufacturers of baby foods knowingly sold baby food products containing heavy
`metals (specifically, arsenic, lead, cadmium, and mercury), yet marketed these products as healthy
`and as not containing harmful ingredients. Movants seeks centralization on an industry-wide basis,
`with the proposed MDL incorporating actions against all major baby food manufacturers. Since
`the filing of the motion, the Panel has been notified of 48 related federal actions pending in twelve
`districts.
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`The motion elicited numerous and varied responses. Plaintiffs in four actions on the motion
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`and six related actions support industry-wide centralization. In addition to the Eastern District of
`New York, plaintiffs in three of these actions suggest either the Northern District of California or
`the Southern District of Florida as the transferee district. Plaintiffs in 23 actions on the motion
`and sixteen related actions oppose centralization on an industry-wide basis. In the alternative,
`various of these plaintiffs propose the Northern District of California, the District of New Jersey,
`and the Eastern District of New York as the transferee forum.
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`Plaintiffs in ten actions on the motion and eleven related actions request or alternatively
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`suggest centralization on a defendant-by-defendant basis. These plaintiffs generally request that
`the defendant-specific MDLs be centralized in the district where the particular defendant is
`located, though there is some disagreement among the parties as to what districts those are.
`Plaintiffs propose centralization of actions naming Beech-Nut Nutrition Company (Beech-Nut) in
`the Northern District of New York; actions naming Campbell Soup Company and Plum, PBC
`(collectively, Plum) in the District of New Jersey; actions naming Gerber Products Company
`(Gerber) in either the District of New Jersey or the Eastern District of Virginia; actions naming
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`* One or more Panel members who could be members of the putative classes in this litigation have
`renounced their participation in these classes and have participated in this decision.
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`1 The motion initially listed 43 actions, five of which were later dismissed voluntarily by plaintiffs.
`At least two of those actions appear to have been re-filed in different districts.
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`The Hain Celestial Group, Inc. (Hain) in the Eastern District of New York; and actions naming
`Nurture, Inc., in either the Eastern or Southern Districts of New York.
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`Defendants Beech-Nut, Plum, Gerber, Hain, Nurture, and Sprout Foods, Inc., oppose any
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`centralization, whether on an industry-wide or defendant-specific basis. Alternatively, if the Panel
`were to centralize this litigation, these defendants propose the District of New Jersey, the Northern
`District of New York, and the Southern District of New York as the transferee district. Walmart
`Inc. also opposes centralization and, alternatively, requests that the two actions in which it is named
`as a defendant be excluded from any MDL. Safeway, Inc., a defendant in one related action, takes
`no position on centralization, but suggests that any MDL should be centralized in New Jersey or
`New York.
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`In addition, plaintiffs in two related actions pending in the Northern District of California
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`and asserting personal injury claims oppose inclusion of personal injury cases in any MDL. These
`plaintiffs alternatively suggest the Northern District of California as the transferee district.
`Plaintiffs in eighteen actions agree that personal injury claims should be excluded from any MDL,
`as do the responding defendants. Plaintiffs in five actions, as well as defendants, similarly suggest
`that the two actions asserting industry-wide civil RICO claims be excluded from any MDL.
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`On the basis of the papers filed and the hearing session held,2 we conclude that
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`centralization is not necessary for the convenience of the parties and witnesses or to further the
`just and efficient conduct of the litigation. At a general level, these actions are similar. All
`plaintiffs allege that defendants knowingly sold baby food products containing heavy metals and
`did not disclose this in their marketing. It is not disputed, though, that each defendant
`manufactures, markets, and distributes its own baby food products subject to different
`manufacturing processes, suppliers, and quality control procedures. The claims against each
`defendant thus are likely to rise or fall on facts specific to that defendant, such as the amount of
`heavy metals in its products, the results of its internal testing, if any, and its marketing strategies.
`Much of the discovery and pretrial practice will be defendant-specific. Plaintiffs overwhelmingly
`do not assert claims of an industry-wide conspiracy or coordination between defendants.3 And,
`although the actions were prompted by a common Congressional investigation, that investigation
`relied primarily on internal testing conducted by defendants and subpoenaed by the House
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`2 In light of the concerns about the spread of the COVID-19 virus (coronavirus), the Panel heard
`oral argument by videoconference at its hearing session of May 27, 2021. See Suppl. Notice of
`Hearing Session, MDL No. 2997 (J.P.M.L. May 10, 2021), ECF No. 194.
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` The exceptions are the two actions asserting civil RICO claims. These claims are somewhat
`tangential to the marketing claims asserted by most of the other actions, as they relate to allegations
`that defendants used an industry group known as the Baby Food Counsel to delay adoption of
`regulatory standards for baby foods and undermine recent studies regarding the presence of heavy
`metals in baby foods. These claims are sufficiently distinct, and will require unique discovery and
`pretrial motion practice, that they do not weigh heavily in favor of industry-wide centralization.
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`Committee. Thus, it seems unlikely that the common Congressional investigation will yield
`significant common discovery.
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`We have been cautious when considering industry-wide centralization. See, e.g., In re
`Secondary Ticket Mkt. Refund Litig., 481 F. Supp. 3d 1345, 1346 (J.P.M.L. 2020) (observing that
`the Panel is “typically skeptical of requests to centralize claims filed against multiple defendants
`who are competitors in a single MDL because it often will not promote judicial efficiency or serve
`the convenience of the parties and witnesses”). Here, 73 of the 86 related actions in this litigation
`are brought against a single defendant. Of the thirteen multi-defendant actions, two are personal
`injury actions, which the parties generally agree should be excluded from the MDL, and two assert
`civil RICO claims, which will involve unique discovery and pretrial practice. The other nine multi-
`defendant actions are subject to pending or anticipated motions to sever and transfer.4 Tellingly,
`centralization is opposed by plaintiffs in 39 actions (representing several different plaintiffs’
`attorney groups) and all defendants. Given the relatively minimal number of common factual
`questions, the potential for a multi-defendant MDL to introduce added complexity to this litigation,
`and the strong opposition of numerous plaintiffs and defendants, we are not persuaded that
`industry-wide centralization is appropriate.
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`Nor are we convinced that defendant-specific centralization is warranted at this time. We
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`have emphasized that “centralization under Section 1407 should be the last solution after
`considered review of all other options.” In re Best Buy Co., Inc., Cal. Song-Beverly Credit Card
`Act Litig., 804 F. Supp. 2d 1376, 1378 (J.P.M.L. 2011). Most of the 73 defendant-specific actions
`in this litigation have been filed or transferred to the district where that defendant is (or was)
`headquartered.5 Several actions either have been transferred by stipulation or voluntarily
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`4 Both the Northern District of California and the Eastern District of New York, in their orders
`consolidating the Plum and Hain actions, respectively, excluded multi-defendant and personal
`injury actions from the consolidated litigations.
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` For instance, all fourteen actions against Beech-Nut have been consolidated in the Northern
`District of New York. Seven actions against Plum are pending in the Northern District of
`California (where Plum, PBC, was headquartered) and four actions are pending in the District of
`New Jersey (where Campbell Soup is located). The Plum actions in California have been
`consolidated, and defendants’ motion to transfer those actions to New Jersey is pending. With
`respect to Gerber, eight actions are pending in the District of New Jersey (where Gerber was
`headquartered until recently), eight actions are in the Eastern District of Virginia (where Gerber is
`now headquartered), and one action is pending in the Southern District of Florida. The Gerber
`actions in New Jersey and Virginia have been consolidated and cross-motions to transfer the
`actions in each district to the other district are pending. As for Hain, fifteen actions are pending
`in the Eastern District of New York (where Hain is based) and one action each is pending in the
`Northern District of California and the Western District of Missouri. Nine of the actions against
`Nurture are pending in the Southern District of New York, with one action each pending in the
`District of Montana and the Northern District of Ohio. Sprout Foods is named in only two actions,
`while Walmart is a defendant in a single action in California.
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`dismissed and re-filed in the defendant’s home district. Several motions to transfer various actions
`to defendant’s home district are pending, as are several motions to sever and transfer multi-
`defendant actions. We have repeatedly observed that transfer under Section 1404 or the first-to-
`file doctrine is preferable to Section 1407 centralization. See, e.g., In re Gerber Probiotic Prods.
`Mktg. & Sales Practices Litig., 899 F. Supp. 2d 1378, 1380–81 (J.P.M.L. 2012) (discussing
`advantages of Section 1404 transfer over Section 1407 centralization). We believe it is better to
`allow the parties’ attempts to self-organize play out before centralizing any part of this litigation.
`If the actions against a particular defendant are not consolidated in a single district, and if
`alternative means of informal coordination and cooperation are ineffective with respect to any
`actions that remain outside the defendants’ home district, the parties at that time may pursue a
`more focused request for centralization.
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`IT IS THEREFORE ORDERED that the motion for centralization of these actions is
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`denied.
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` PANEL ON MULTIDISTRICT LITIGATION
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` Karen K. Caldwell
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` Chair
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`Catherine D. Perry
`Matthew F. Kennelly
`Roger T. Benitez
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` Nathaniel M. Gorton
` David C. Norton
` Dale A. Kimball
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`Case NYE/2:21-cv-01045 Document 26 Filed 06/07/21 Page 5 of 6
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`MDL No. 2997
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`IN RE: BABY FOOD MARKETING, SALES PRACTICES
`AND PRODUCTS LIABILITY LITIGATION
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`SCHEDULE A
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`Central District of California
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`ROBBINS v. GERBER PRODUCTS COMPANY, ET AL., C.A. No. 2:21−01457
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`Northern District of California
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`IN RE PLUM BABY FOOD LITIGATION, C.A. No. 4:21−00913
`MCKEON, ET AL. v. PLUM, PBC, ET AL., C.A. No. 4:21−01113
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`Northern District of Illinois
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`GARCES v. GERBER PRODUCTS CO., ET AL., C.A. No. 1:21−00719
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`District of Kansas
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`JOHNSON, ET AL. v. BEECH−NUT NUTRITION COMPANY, ET AL.,
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`C.A. No. 2:21−02096
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`Western District of Missouri
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`SMITH, ET AL. v. THE HAIN CELESTIAL GROUP, INC., C.A. No. 4:21−00129
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`District of New Jersey
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`SMID v. CAMPBELL SOUP COMPANY, ET AL., C.A. No. 1:21−02417
`SHEPARD, ET AL. v. GERBER PRODUCTS COMPANY, C.A. No. 2:21−01977
`MOORE v. GERBER PRODUCTS COMPANY, C.A. No. 2:21−02516
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`Eastern District of New York
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`WALLS, ET AL. v. BEECH−NUT NUTRITION COMPANY, ET AL.,
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`C.A. No. 1:21−00870
`STEWART, ET AL. v. HAIN CELESTIAL GROUP, INC., C.A. No. 2:21−00678
`BREDBERG, ET AL. v. THE HAIN CELESTIAL GROUP, INC., C.A. No. 2:21−00758
`MAYS v. HAIN CELESTIAL GROUP, INC., C.A. No. 2:21−00805
`BOYD v. HAIN CELESTIAL GROUP, INC., C.A. No. 2:21−00884
`MCKEON, ET AL. v. HAIN CELESTIAL GROUP, C.A. No. 2:21−00938
`BAUMGARTEN v. THE HAIN CELESTIAL GROUP, INC., C.A. No. 2:21−00944
`WILLOUGHBY v. HAIN CELESTIAL GROUP, C.A. No. 2:21−00970
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`Case NYE/2:21-cv-01045 Document 26 Filed 06/07/21 Page 6 of 6
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`LOPEZ−SANCHEZ v. THE HAIN CELESTIAL GROUP, INC., C.A. No. 2:21−01045
`ZORRILLA v. HAIN CELESTIAL GROUP, INC., C.A. No. 2:21−01062
`GALLOWAY v. HAIN CELESTIAL GROUP, INC., C.A. No. 2:21−01067
`BACCARI, ET AL. v. HAIN CELESTIAL GROUP, INC., C.A. No. 2:21−01076
`ALBANO, ET AL. v. HAIN CELESTIAL GROUP, INC., ET AL., C.A. No. 2:21−01118
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`Northern District of New York
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`THOMAS, ET AL. v. BEECH−NUT NUTRITION COMPANY, C.A. No. 1:21−00133
`PEEK v. BEECH−NUT NUTRITION COMPANY, C.A. No. 1:21−00167
`MOORE, ET AL. v. BEECH−NUT NUTRITION COMPANY, C.A. No. 1:21−00183
`DOYLE v. BEECH−NUT NUTRITION CO., C.A. No. 1:21−00186
`BOYD v. BEECH−NUT NUTRITION COMPANY, C.A. No. 1:21−00200
`CANTOR, ET AL. v. BEECH−NUT NUTRITION COMPANY, C.A. No. 1:21−00213
`HENRY v. BEECH−NUT NUTRITION CO., C.A. No. 1:21−00227
`MOTHERWAY v. BEECH−NUT NUTRITION COMPANY, C.A. No. 1:21−00229
`GANCARZ v. BEECH−NUT NUTRITION COMPANY, C.A. No. 1:21−00258
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`Southern District of New York
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`STEWART, ET AL. v. NURTURE, INC., C.A. No. 1:21−01217
`SOTO v. NURTURE, INC., C.A. No. 1:21−01271
`JAIN v. NURTURE, INC., C.A. No. 1:21−01473
`SMITH v. NURTURE, INC., C.A. No. 1:21−01534
`HAMPTON, ET AL. v. NURTURE, INC., C.A. No. 1:21−01882
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`Eastern District of Virginia
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`KEETER v. GERBER PRODUCTS COMPANY, C.A. No. 1:21−00269
`MOORE v. GERBER PRODUCTS COMPANY, C.A. No. 1:21−00277
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