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`BEFORE THE UNITED STATES JUDICIAL PANEL ON MULTIDISTRICT
`LITIGATION
`__________________________________________
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`IN RE: BABY FOOD MARKETING, SALES
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`PRACTICES AND PRODUCT LIABILITY
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`LITIGATION
`__________________________________________:
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`MDL No. 2997
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`PLAINTIFFS ERIK LAWRENCE, RACHEL M. FRANTZ, AND MARIE MEZILE’S
`INTERESTED PARTY RESPONSE IN SUPPORT OF MOTION TO CENTRALIZE
`THE BABY FOOD CASES IN THE EASTERN DISTRICT OF NEW YORK
`Plaintiffs Erik Lawrence, Rachel M. Frantz, and Marie Mezile respectfully submit their
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`interested party response in support of the centralization motion filed by plaintiffs Lori-Anne
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`Albano, Myjorie Philippe, Rebecca Telaro, and Alyssa Rose on March 8, 2020. (Doc. No.1)1
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`PRELIMINARY STATEMENT
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`The sixty-plus baby food lawsuits allege the same thing—that defendants knew their
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`baby food contained unsafe amounts of heavy metals, but failed to disclose this fact to people
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`purchasing the products to feed their babies and infants. A contaminated baby food MDL is
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`warranted because the §1407 requirements are satisfied and fundamental issues necessary to
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`resolve the claims will not vary among the defendants or the plaintiffs.
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`ARGUMENT IN SUPPORT OF CENTRALIZATION
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`The requirements for transfer under 28 U.S.C. §1407 are met here because: 1) there are
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`civil actions pending in different districts that have one or more common questions of fact; 2)
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`centralization will be for the convenience of the parties and witnesses; and 3) centralization will
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`promote the just and efficient conduct of the actions.
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`1 Plaintiffs filed Erik Lawrence, et al. v. Hain Celestial Group, et al., Case 1:21-cv-01287
`(E.D.N.Y.).
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`Case NYE/1:21-cv-01287 Document 28 Filed 04/13/21 Page 2 of 8
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`The most efficient way to handle the baby food cases—for the defendants, the plaintiffs,
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`and the judicial system—is to create one MDL managed by a single judge. This approach
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`worked very well in the Automotive Parts Antitrust Litigation, MDL No. 2311, where the Panel
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`turned what could have been scores of separate cases brought by purchasers at different levels of
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`the distribution chain against different parts manufacturers in districts scattered across the
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`country into a unitary MDL capably managed by Judge Battani.2
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`The genesis of MDL No. 2311 occurred in September 2011, when the Department of
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`Justice announced that a motor vehicle parts manufacturer (Furukawa) had agreed to plead guilty
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`to conspiring to fix prices of wire harnesses. Civil antitrust cases were filed against Furukawa
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`and other wire harness manufacturers by direct and indirect purchasers. Motions to centralize
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`the actions were filed with the Panel. Creation of an MDL in the Eastern District of Michigan
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`was advocated by most of the parties in the cases. The Panel agreed, and centralized the wire
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`harness cases in the Eastern District of Michigan. In re Automotive Wire Harness Sys. Antitrust
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`Litig., MDL No. 2311, 2012 WL 432596 (J.P.M.L. Feb. 7, 2012).
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`Soon after Furukawa’s guilty plea, other parts suppliers began to plead guilty to fixing
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`prices of other motor vehicle parts. These guilty pleas led to additional civil cases being filed by
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`purchasers of these products.3 Motions to create separate MDL dockets for the cases asserting
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`antitrust (and consumer protection) claims against producers of these parts were then filed with
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`the Panel.
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`On May 31, 2012, the Panel held a hearing on the motions to create multidistrict
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`litigation dockets for three new parts cases. The Panel decided that the cases involving these
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`2 MDL No. 2311 was reassigned to Judge Cox because Judge Battani had to step away from her
`duties and eventually retire for health reasons.
`3 Many additional guilty pleas and civil cases with respect to other parts were to come.
`2
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`Case NYE/1:21-cv-01287 Document 28 Filed 04/13/21 Page 3 of 8
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`products should be transferred to the Eastern District of Michigan and Judge Battani, but
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`declined the request to create three new MDLs. In re Automotive Parts Antitrust Litig., 867 F.
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`Supp. 2d 1349, 1350-51 (J.P.M.L. June 12, 2012).
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`The Panel’s reluctance to create multiple MDL dockets was not overcome by arguments
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`“that the cases in each MDL involve a separate alleged conspiracy that will involve facts, time
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`frames, parties and witnesses specific to that alleged conspiracy.” Id. The Panel concluded that
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`“including all actions in MDL No. 2311 will lead to the most efficient handling of these cases.”
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`Id.4
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`Part of what drove the Panel’s decision was that the government was investigating
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`anticompetitive conduct in one industry, even though it was composed of scores of suppliers
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`producing thousands of parts. The final paragraph of the Panel’s June 12, 2012 Transfer Order
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`renaming the “Wire Harness Systems Antitrust Litigation” as “In re Automotive Parts Antitrust
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`Litigation” clearly expressed the Panel’s intent to not just include wire harness products,
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`instrument panel cluster, fuel sender, and heater control panel cases with some overlapping
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`defendants under an umbrella automotive parts MDL, but also any future cases involving
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`different automotive parts and parties. The Panel’s decision to create one MDL was designed to
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`and in fact achieved excellent results—a just and efficient resolution of multiple cases filed in
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`different districts that revolved around widespread collusion in the automotive parts industry.
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`The rationale employed by the Panel in automotive parts is equally applicable here.
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`The practices of an entire industry were also under scrutiny in In re Factor VIII or IX
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`Concentrate Blood Prods. Prod. Liability Litig., MDL No. 986, 853 F. Supp. 454 (J.P.M.L. Dec.
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`4 The Panel noted that the transferee court had tools at its disposal to most efficiently manage
`cases involving different parts within the framework of MDL No. 2311. In re Automotive Parts
`Antitrust Litig., 867 F. Supp. 2d at 1351.
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`7, 1993) (“Factor Concentrate”). Factor concentrates were products, made from human blood
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`plasma, used by persons with hemophilia to control internal bleeding. The plasma used to make
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`factor concentrates eventually became contaminated with the human immunodeficiency virus
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`(“HIV”). Factor concentrates made with contaminated plasma then became tainted with HIV.
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`Users of factor concentrates were infected with HIV from use of contaminated factor
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`concentrates.
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`Hemophiliacs infected with HIV sued the four major factor concentrate producers in
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`several districts. An MDL motion was granted, and the factor concentrate cases were centralized
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`in the Northern District of Illinois before Judge Grady. The Panel identified the following
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`common factual questions as supporting §1407 centralization: 1) the adequacy of the defendants’
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`testing of plasma used to make factor concentrates for the presence of HIV or other viruses; 2)
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`the adequacy of the defendants’ screening of high-risk plasma donors; and 3) the adequacy of the
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`defendants’ warnings to hemophiliacs and their physicians of the dangers of HIV transmission
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`through use of factor concentrates. Id. at 455. Over the objections of the defendants, the Panel
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`concluded that centralization of all the factor concentrate cases in one district was necessary to
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`eliminate duplicative discovery, prevent inconsistent pretrial rulings, and to conserve the
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`resources of the parties, their counsel, and the judiciary. Id. Factor Concentrates, where
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`plaintiffs alleged that the entire industry failed to properly test, screen, or warn, is analogous to
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`the allegations about the conduct of the baby food defendants.
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`Litigation against opiate manufacturers and distributors was centralized in the Northern
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`District of Ohio. In re National Prescription Opiate Litig., MDL No. 2804, 290 F. Supp. 3d
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`1375 (J.P.M.L. Dec. 5, 2017). The Panel decided that a single MDL was warranted even though
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`[t]he parties opposing transfer stress the uniqueness of the claims they
`bring (or the claims that are brought against them), and they argue that
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`Case NYE/1:21-cv-01287 Document 28 Filed 04/13/21 Page 5 of 8
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`distributors will lead to inefficiencies that could slow the progress of
`all cases. While we appreciate these arguments, we are not persuaded
`by them. All of the actions can be expected to implicate common fact
`questions as to the allegedly improper marketing and widespread
`diversion of prescription opiates into states, counties and cities across
`the nation, and discovery likely will be voluminous. Although
`individualized factual issues may arise in each action, such issues do
`not—especially at this early stage of litigation—negate the efficiencies
`to be gained by centralization.
`Id. at 1378-79.
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`The Panel has established MDLs in circumstances where different defendants produced
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`an allegedly defective product. For example, the Panel decided that cases against Chinese
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`drywall manufacturers whose products allegedly released sulfur gases, which corroded metal
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`appliances and components in homes and also caused headaches, and respiratory and skin
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`ailments, should be combined in one pretrial proceeding. In re Chinese-Manufactured Drywall
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`Products Liability Litig., MDL No. 2047, 626 F. Supp. 2d 1346 (J.P.M.L. June 15, 2009).
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`Another example is In re Takata Airbag Products Liability Litig., MDL No. 2599, 84 F.
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`3d 1371 (J.P.M.L. Feb. 5, 2015). Takata made different airbags for major automobile
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`manufacturers. Owners of vehicles equipped with Takata airbags alleged that the airbags
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`exploded, sending metal shards into the passenger compartments of the affected vehicles.
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`Plaintiffs sued Takata and the vehicle manufacturers in districts across the country. Ordering
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`centralization in the Southern District of Florida, the Panel explained that
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`[t]hese actions—all of which are putative nationwide class actions—share
`factual questions arising from allegations that certain Takata-manufactured
`airbags are defective in that they can violently explode and eject metal
`debris, resulting in injury or even death. Plaintiffs allege that Takata and the
`various motor vehicle manufacturer defendants became aware of the defect
`years ago, but concealed their knowledge from safety regulators and the
`public. Centralization will eliminate duplicative discovery, prevent
`inconsistent pretrial rulings on class certification and other issues, and
`conserve the resources of the parties, their counsel, and the judiciary.
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`Id. at 1372.
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`Case NYE/1:21-cv-01287 Document 28 Filed 04/13/21 Page 6 of 8
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`Defendants suggest that their efforts to steer cases into separate proceedings in different
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`districts would eliminate the need for an MDL. What the defendants apparently desire is to create
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`multiple, separate MDLs limited to claims against a single defendant. But defendants’ approach
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`makes little sense because all plaintiffs allege that each of the defendants knowingly failed to
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`disclose the presence of heavy metals in its baby food. Whatever the tactical or strategic benefit
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`defendants believe they will gain, their proposal would diminish the efficiencies that animated
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`the creation of the multidistrict litigation statute in the first place.
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`As with Automotive Parts, Factor Concentrates, and Opiates, the conduct of an entire
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`industry is being examined. How multiple cases in front of different judges in various districts
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`and circuits is more just and efficient than one baby food MDL in front of one judge in one
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`district and circuit is not apparent. A single judge making consistent rulings—as Judge Battani
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`did in MDL No. 2311—with appeals to one circuit is preferable to the polyglot defendants
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`seemingly prefer.
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`Defendants already work together with respect to the same underlying issue asserted in
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`the lawsuits—heavy metals in their baby food. Defendants Beech-Nut, Campbell Soup (Plum
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`Organics), Gerber, Hain Celestial (Earth’s Best), and Happy Family Organics, and other
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`organizations, formed a Baby Food Council in 2019 to coordinate with respect to heavy metals in
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`the companies’ baby food products.
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`CENTRALIZATION IN THE EASTERN DISTRICT OF NEW YORK IS
`APPROPRIATE
`The Eastern District of New York is an appropriate and convenient venue for a baby food
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`MDL. One of the defendants’ headquarters is in the Eastern District of New York, and another
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`has its headquarters close to the Eastern District of New York. There are at least 17 cases
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`against various defendants currently pending in the Eastern District of New York, more than in
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`Case NYE/1:21-cv-01287 Document 28 Filed 04/13/21 Page 7 of 8
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`any other district. These factors favor the Eastern District of New York as a transferee court for
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`these cases.
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`CONCLUSION
`Centralization of the baby food cases will eliminate duplicative discovery, prevent
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`inconsistent pretrial rulings on class certification and other issues, and conserve the resources of
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`the parties, their counsel, and the judiciary. These benefits will flow from a baby food MDL,
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`which Plaintiffs respectfully request be established in the Eastern District of New York.
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`Dated: April 13, 2021
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`Respectfully submitted,
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`/s/ William E. Hoese
`William E. Hoese
`Douglas A. Abrahams
`Craig W. Hillwig
`Barbara Gibson
`Zahra R. Dean
`Aaarthi Manohar
`KOHN, SWIFT & GRAF, P.C.
`1600 Market Street, Suite 2500
`Philadelphia, PA 19103
`Telephone: (215) 238-1700
`whoese@kohnswift.com
`dabrahams@kohnswift.com
`chillwig@kohnswift.com
`bgibson@kohnswift.com
`zdean@kohnswift.com
`amanohar@kohnswift.com
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`David H. Fink
`Nathan J. Fink
`FINK BRESSACK
`38500 Woodward Ave; Suite 350
`Bloomfield Hills, MI 48304
`Telephone: (248) 971-2500
`dfink@finkbressack.com
`nfink@finkbressack.com
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`Case NYE/1:21-cv-01287 Document 28 Filed 04/13/21 Page 8 of 8
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`Michael L. Roberts
`Karen Halbert
`ROBERTS LAW FIRM, P.A.
`20 Rahling Circle
`Little Rock, Arkansas 72223
`Telephone: (501) 821-5575
`mikeroberts@robertslawfirm.us
`karenhalbert@robertslawfirm.us
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`Attorneys for Plaintiffs Erik Lawrence, Rachel M.
`Frantz, and Marie Mezile
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