Case 1:21-cv-00870-DG-SJB Document 25 Filed 03/15/21 Page 1 of 13 PageID #: 210
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`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF NEW YORK
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`MICHELLE WALLS, on behalf of herself and all
`others similarly situated; and N.W., a minor child,
`by his parent and general guardian Michelle Walls,
`on behalf of himself and all others similarly
`situated;
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`Civil Action No.: 1:21-cv-00870
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` Plaintiffs,
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` v.
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`BEECH-NUT NUTRITION COMPANY;
`THE HAIN CELESTIAL GROUP, INC.;
`NURTURE, INC. D/B/A HAPPY FAMILY
`ORGANICS; GERBER PRODUCTS
`COMPANY; and PLUM PBC.;
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` Defendants.
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`PLAINTIFFS’ MEMORANDUM OF LAW IN OPPOSITION TO
`STEWART PLAINTIFFS’ MOTION TO CONSOLIDATE
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`POLLOCK COHEN LLP
`60 Broad St., 24th Fl.
`New York, NY 10004
`(212) 337-5361
`
`Counsel for Plaintiffs and Proposed Class
`Representatives Michelle Walls and N.W.
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`

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`TABLE OF CONTENTS
`Introduction ................................................................................................. 1
`Statement of Facts ........................................................................................ 2
`The Walls Complaint. .............................................................................................. 2
`I.
`The Stewart Complaint and Instant Motion. ............................................................ 3
`II.
`III.
`The Judicial Panel on Multidistrict Litigation’s Pending Motion to Transfer and
`Consolidate the Stewart and Walls cases, among others, to this Court. .................... 4
`Standard of Review ....................................................................................... 4
`Argument .................................................................................................... 5
`Judicial economy dictates that this Court refrain from ruling on the Stewart
`I.
`Plaintiffs’ Motion until the Panel on Multidistrict Litigation has ruled. .................. 5
`The Stewart Plaintiffs fail to meet their burden in showing why consolidation is
`appropriate. ............................................................................................................. 6
`The Stewart Plaintiffs fail to demonstrate that common questions sufficiently justify the
`A.
`proposed consolidation. ......................................................................................... 6
`The potential benefits of consolidation are limited and outweighed by the potential
`prejudice to the Walls Plaintiffs. ............................................................................ 8
`Conclusion ................................................................................................. 10
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`II.
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`B.
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`Cases
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`TABLE OF AUTHORITIES
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`Banacki v. OneWest Bank, FSB,
`276 F.R.D. 567 (E.D. Mich. 2011) .............................................................................................. 8
`
`Decoteau v. Raemisch,
`304 F.R.D. 683 (D. Colo. 2014) .................................................................................................. 8
`
`Devlin v. Transportation Commc’ns Int’l Union,
`175 F.3d 121 (2d Cir. 1999) ........................................................................................................ 4
`
`Doug Brady, Inc. v. New Jersey Bldg. Laborers Statewide Funds,
`250 F.R.D. 171 (D. N.J. 2008) ..................................................................................................... 9
`
`In re Repetitive Stress Injury Litig.,
`11 F.3d 368 (2d Cir. 1993) .......................................................................................................... 5
`
`Johnson v. Celotext Corp.,
`899 F.2d 1281 (2d Cir. 1990) ...................................................................................................... 5
`
`KGK Jewelry LLC v. ESDNetwork,
`No. 11-cv-9236-LTS-RLE, 2014 WL 7333291 (S.D.N.Y. Dec. 24, 2014) ............................. 5, 9
`
`Pac. Recovery Sols. v. Cigna Behav. Health, Inc.,
`No. 5:20-CV-02251-EJD, 2021 WL 577394 (N.D. Cal. Feb. 16, 2021) ..................................... 8
`
`Parker v. Hyperdynamics Corp.,
`126 F. Supp. 3d 830 (S.D. Tex. 2015) ......................................................................................... 9
`
`Smith v. Everson,
`No. 06-cv-0791-SJF, 2007 WL 2294320 (E.D.N.Y. Aug. 6, 2007) ............................................. 5
`
`Statutes
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`Fla. Stat. Ann. § 501 ........................................................................................................................ 7
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`New York Gen. Bus. Law § 349 ...................................................................................................... 6
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`New York Gen. Bus. Law § 350 ...................................................................................................... 6
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`Rules
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`Fed. R. Civ. P. 5.2 ........................................................................................................................... 1
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`Fed. R. Civ. P. 42 ............................................................................................................................ 4
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`ii
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`INTRODUCTION
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`Plaintiffs Michelle Walls and N.W.1 (by his mother and general guardian Michelle Walls)
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`(“Walls Plaintiffs”), respectfully oppose movants Nicole Stewart, Elizabeth Agramonte, and
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`Summer Apicella’s (the “Stewart Plaintiffs”) motion for consolidation and to set deadlines, see
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`Stewart Mot. to Consolidate (ECF No. 6). The Walls Plaintiffs recognize, and are in no way
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`opposed, to the courts imposing some order over the now 43 lawsuits, including 38 class actions,
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`filed in 12 jurisdictions, against several different baby-food manufacturers who only recently
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`disclosed to Congress that their products contain dangerously high levels of four heavy metals:
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`arsenic, lead, cadmium, and mercury. The issue, rather, is that the Stewart Plaintiffs’ request,
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`which is limited to only the 12 lawsuits currently pending in the Eastern District of New York,
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`has been usurped by the since-filed motion to transfer and consolidate all 43 cases—including the
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`Stewart and Walls cases—currently pending before the Judicial Panel on Multidistrict Litigation.
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`See In re: Baby Food Marketing, Sales Practices and Production Liability Litig., No. 2997, ECF No. 1
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`(J.P.M.L. Mar. 8, 2021). Briefing on that motion will be completed April 6, 2021, and there will
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`be little prejudice, if any, to the Stewart Plaintiffs if this Court were to wait for a decision from the
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`Panel.
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`Even were it not for this pending decision from the Panel, when considering the merits of
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`the Stewart Plaintiffs’ motion, a review of the two cases’ allegations and claims shows that
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`consolidation is inappropriate. The Stewart Plaintiffs have sued a single defendant, Hain Celestial
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`Group, Inc. (“Hain”); alleged four causes of action based around a single legal theory; and sought
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`to represent a class of purchasers of Hain baby food products only. In contrast, the Wells
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` Plaintiff N.W. is a minor and is identified here by his initials. See Fed. R. Civ. P. 5.2.
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`1
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` 1
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`Plaintiffs have sued five defendant baby food manufacturers—i.e., Beech-Nut Nutrition Co.,
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`Hain, Gerber Products Co., Nurture Inc., and Plum PBC; alleged 11 claims against each
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`Defendant; and seek to represent both a purchaser class and a consumer class of each
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`Defendant’s products.
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`In short, the Stewart Plaintiffs’ motion fails to show why consolidation is appropriate in
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`light of the Panel’s anticipated decision, or as between the Walls and Stewart cases. Accordingly,
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`this Court should deny (or at a minimum refrain from ruling on) the Stewart Plaintiffs’ motion at
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`this time.
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`I.
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`The Walls Complaint.
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`STATEMENT OF FACTS
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`The Walls Plaintiffs are Michelle Walls, a resident of Staten Island, and her infant son
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`N.W. Walls et al. v. Beech-Nut Nutrition Co. et al., No. 1:21-cv-00870, ECF No. 1 (“Walls Compl.”),
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`¶¶ 10–11 (E.D.N.Y. Feb. 17, 2021). The Walls Complaint alleges 11 causes of action against five
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`defendants—Beech-Nut, Hain, Gerber, Nurture, and Plum. Id. ¶¶ 12–16. These allegations are
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`based on the Walls Plaintiffs own purchases and/or consumption of the Walls Defendants’ baby
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`food products, the revelations of a Report published by the U.S. House of Representatives’
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`Subcommittee on Economic and Consumer Policy (“House Subcommittee Report”), as well as
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`independent research into representations made by the Walls Defendants in their product
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`labeling, advertising, communications, and websites. See id. ¶¶ 19–45.
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`The Walls Plaintiffs allege the following theories of liability across their claims: (1) the
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`Walls Defendants engaged in deceptive, fraudulent, and/or misrepresentative practices by
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`advertising and selling baby food products that represented (a) they were healthy, (b) that they
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`were safe, (c) that they were appropriate to feed to children, (d) that the Walls Defendants’ testing
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`protocols excluded dangerous ingredients with elevated toxic heavy metals levels, and/or (e) that
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`2
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`the baby food did not contain elevated levels of toxic heavy metals, see id. ¶¶ 66–182; (2) the Walls
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`Defendants breached various common-law duties against Plaintiff Michelle Walls and other
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`purchasers of their products by creating and selling dangerous baby food products containing
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`elevated levels of toxic heavy metals, and failing to warn of the danger, preventing these
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`purchasers from taking preventative and monitoring measures to protect the health and
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`development of their children, see id. ¶¶ 183–233; and (3) the Walls Defendants breached various
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`common-law duties against Plaintiff N.W. and other children who consumed their products by
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`creating and selling dangerous baby food products containing elevated levels of toxic heavy
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`metals, and failing to warn of the danger, creating a need for ongoing medical and
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`developmental monitoring and educational, medical, and social interventions for these children,
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`see id.
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`II.
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`The Stewart Complaint and Instant Motion.
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`The Stewart Plaintiffs are Nicole Stewart, a resident of Hauppauge, New York, Elizabeth
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`Agramonte, a resident of Naples, Florida, and Summer Apicella, a resident of Holbrook, New
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`York. Stewart et al. v. Hain Celestial Group, Inc., No. 2:21-cv-00678, ECF No. 1 (“Stewart Compl.”),
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`¶¶ 6–8. The Stewart Plaintiffs have asserted four causes of action against a single defendant, Hain.
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`Id. ¶¶ 9–13. These allegations are based mainly on the House Subcommittee Report (see id. ¶¶
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`17–36), and revolve around one common theory of liability: that Hain engaged in deceptive
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`practices by advertising and selling baby food products that contained elevated levels of toxic
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`heavy metals, see, e.g., id. ¶¶ 50–57.
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`On February 28, 2021, the Stewart Plaintiffs moved to consolidate a number of cases
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`pending in this judicial district brought against Hain. See Stewart Mem. Of Law ISO Mot. to
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`Consolidate (ECF No 6-1). While acknowledging in a footnote that the Walls complaint was the
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`only case to name several defendants in addition to Hain, the Stewart Plaintiffs otherwise glossed
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`3
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`over the substantial differences between the two cases and urged this Court to simply consolidate
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`these cases, and revisit the issue (a) after the other non-Hain Defendants—i.e., Gerber, Beech-
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`Nut, Nurture, and Plum—had each appeared; and (b) in light of any rulings involving how cases
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`involving multiple defendants like Walls should be handled. See id. at 2 n. 5. As part of their
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`motion, the Stewart Plaintiffs further asked this Court to set a deadline for the filing of motions
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`seeking interim lead counsel appointment, as well as a deadline for the filing of a consolidated
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`amended complaint. See id. at 9.
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`III. The Judicial Panel on Multidistrict Litigation’s Pending Motion to Transfer
`and Consolidate the Stewart and Walls cases, among others, to this Court.
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`On March 8, 2021, plaintiffs in Albano et al. v. Hain Celestial Group, Inc. et al., No. 2:21-cv-
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`01118 (E.D.N.Y.), filed a motion with the Judicial Panel on Multidistrict Litigation requesting
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`that the Panel transfer and consolidate at least 43 cases (i.e., 38 proposed class actions, including
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`both Stewart and Walls) involving eight different baby food manufacturers, to this Court. See
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`Albano Pls.’ Br. ISO Mot. to Transfer Actions to E.D.N.Y., In re: Baby Food Marketing, Sales Practices
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`and Production Liability Litig., No. 2997 (J.P.M.L. Mar. 8, 2021) at 3 (ECF No. 1-1). Responses and
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`Replies to this motion are due March 30 and April 6, respectively.
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`STANDARD OF REVIEW
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`Rule 42(a) provides that “[i]f actions before the court involve a common question of law
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`or fact, the court may: (1) join for hearing or trial any or all matters at issue in the actions; (2)
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`consolidate the actions; or (3) issue any other orders to avoid unnecessary cost or delay.”
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`Consolidation of cases is “a valuable and important tool of judicial administration . . . invoked to
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`expedite trial and eliminate unnecessary repetition and confusion.” Devlin v. Transportation
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`Commc’ns Int’l Union, 175 F.3d 121, 130 (2d Cir. 1999) (cleaned up). The party moving for
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`consolidation has the burden of showing the commonality of factual and legal issues. In re
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`4
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`Repetitive Stress Injury Litig., 11 F.3d 368, 373 (2d Cir. 1993). While courts have “broad discretion
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`to determine whether consolidation is appropriate,” Johnson v. Celotext Corp., 899 F.2d 1281, 1284
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`(2d Cir. 1990), the Second Circuit has cautioned courts to consider the following:
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`[W]hether the specific risks of prejudice and possible confusion
`[are] overborne by the risk of inconsistent adjudications of
`common factual and legal issues, the burden on parties, witnesses,
`and available judicial resources posed by multiple lawsuits, the
`length of time required to conclude multiple suits as against a single
`one, and the relative expense to all concerned of the single-trial,
`multiple-trial alternatives.
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`Id. at 1285. In other words, even if there is a common question of law or fact, where
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`consolidation would cause prejudice in excess of any anticipated benefit or efficiency, or would
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`“muddle the issues before the court or trier of fact,” consolidation should be denied. KGK Jewelry
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`LLC v. ESDNetwork, No. 11-cv-9236-LTS-RLE, 2014 WL 7333291, at *3 (S.D.N.Y. Dec. 24,
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`2014); see also Smith v. Everson, No. 06-cv-0791-SJF, 2007 WL 2294320, at *3 (E.D.N.Y. Aug. 6,
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`2007).
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`ARGUMENT
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`I.
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`Judicial economy dictates that this Court refrain from ruling on the Stewart
`Plaintiffs’ Motion until the Panel on Multidistrict Litigation has ruled.
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`Here, principles of judicial economy weigh heavily in favor of this Court denying, or at a
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`minimum refraining from ruling on, the Stewart Plaintiffs’ motion at this time. The Panel’s
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`decision could impact this Court’s approach to this case in any number of ways, and it simply
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`makes no sense for this Court, as well as the various parties before it, to get out ahead of it. On
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`the one hand, if the Panel transfers non-E.D.N.Y. cases to this Court, as the pending motion
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`proposes, then the proposed consolidation, and furthermore the proposed briefing schedule after
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`the proposed consolidation, would have to be re-done after the Panel ordered that other non-
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`E.D.N.Y. cases be transferred. On the other hand, if the Panel elects to transfer related cases,
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`including Stewart and Walls, but not to this Court, then this Court will have spent time
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`unnecessarily consolidating and scheduling cases it is no longer responsible for.
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`In sum, granting the Stewart Plaintiffs motion in the shadow of the pending Panel’s motion
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`would waste this Court’s limited resources (as well as those of the parties) in undertaking an
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`unnecessary intermediary step that is likely to be significantly impacted by whatever the Panel
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`decides.
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`II.
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`The Stewart Plaintiffs fail to meet their burden in showing why
`consolidation is appropriate.
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`Even were it not for the pending motion before the Panel, a close review of the Stewart
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`Plaintiffs’ motion reveals that (a) the limited commonality shared between the Stewart and Walls
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`case is an insufficient basis for consolidation; and (b) the consolidation of such cases would result
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`in potential conflicting rulings with other judicial districts, wasted judicial and party resources,
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`and potential prejudice to the Walls Plaintiffs and the non-Hain Walls Defendants.
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`A.
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`The Stewart Plaintiffs fail to demonstrate that common questions
`sufficiently justify the proposed consolidation.
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`The Stewart Plaintiffs in arguing for consolidation note that both complaints (i) rely on the
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`House Subcommittee Report to support their claims, and (ii) name Hain as a defendant. See
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`Stewart Pls.’ Mot. to Consolidate (ECF No. 6-1) at 10–11. On this basis, the Stewart Plaintiffs then
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`broadly assert that both cases “present the same factual and legal issues, involve the same
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`defendant, and will involve substantially the same discovery . . . .” Id. at 11.
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`But this is incorrect.
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`As noted above, there are significant differences in the claims alleged, the basis for such
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`claims, the number of defendants, and the proposed classes to be certified. The Stewart Plaintiffs
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`allege four claims on behalf of one class against one defendant—Hain. The four claims against
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`Hain—i.e., for violations of New York Gen. Bus. Law §§ 349 and 350, Fla. Stat. Ann. §
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`6
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`501.211(b), and for unjust enrichment (Stewart Compl., ¶¶ 47–96)—operate under one theory of
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`liability: that it was unfair, deceptive, and/or false for Hain to fail to disclose that Earth’s Best
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`organic baby food products contained dangerous levels of toxic heavy metals. See id. ¶¶ 54, 67,
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`80, 92.
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`In contrast, the Walls Plaintiffs allege 11 claims on behalf of 10 putative classes against
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`five defendants, including Hain. In addition to alleging claims under New York law and for
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`unjust enrichment, the Walls Plaintiffs also assert claims for fraudulent concealment, intentional
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`misrepresentation, negligent misrepresentation, breach of express warranty, breach of implied
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`warranty, negligence, gross negligence, and strict products liability. See Walls Compl. ¶¶ 76–116,
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`149–223. Such claims extend well past the Stewart Plaintiffs’ basic theory of liability (i.e., that
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`Hain’s failure to disclose the levels of toxic heavy metals was a deceptive business practice).
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`The Walls Complaint further alleges (1) that it was deceptive for the Walls Defendants to
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`represent that their baby food products were “healthy, safe, [or] appropriate to feed to children”;
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`and (2) that it was deceptive to represent “that their testing protocols ensure that Tainted Baby
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`Food Products exclude ingredients that are unsafe,” id. ¶ 120; see id. ¶ 106 (alleging same theories
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`as to negligent misrepresentation); and (3) that each Walls Defendant possessed a common-law
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`duty to make their products safe and to warn of hazards in their products, see, e.g., id. ¶¶ 184, 186,
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`214.
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`The Walls Plaintiffs’ requested relief in turn goes further than the Stewart Plaintiffs, by
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`seeking among other things, damages for both the Walls parent/guardian-purchaser class and
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`Walls child-consumer; medical monitoring costs; past and future, intervention costs associated
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`with assisting children affected by the consumption of the Walls Defendants’ products in
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`overcoming associated developmental delays or disabilities; and economic losses associated with
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`lost income or diminished earnings. See, e.g., id. ¶¶ 201–02.
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`7
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`As a result, the magnitude and complexity of the Walls case—whether measured in terms
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`of potential discovery, issues and claims to be decided, or potential prejudice to the parties—can
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`only be described as substantially different than the more limited Stewart Complaint. Under such
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`circumstances, consolidation is inappropriate. See, e.g., Pac. Recovery Sols. v. Cigna Behav. Health, Inc.,
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`No. 5:20-CV-02251-EJD, 2021 WL 577394, at *4–5 (N.D. Cal. Feb. 16, 2021) (denying motion
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`to consolidate where despite a shared “common issue,” “[t]he difference in the parties and the
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`[facts] at issue” as well as the “additional claims” in the more complex case of the two made
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`consolidation “for all purposes not appropriate.”); see also Banacki v. OneWest Bank, FSB, 276
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`F.R.D. 567, 572 (E.D. Mich. 2011) (denying motion to consolidate because “only point of
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`commonality” was common involvement of a single entity in mortgage transactions, but “each of
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`the putative class actions” alleged distinct claims and theories of liability, with one more complex
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`than the other).
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`B.
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`The potential benefits of consolidation are limited and outweighed by
`the potential prejudice to the Walls Plaintiffs.
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`Principles of judicial economy and basic fairness further weigh in favor of rejecting the
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`Stewart Plaintiffs’ motion. Whatever the perceived benefits of consolidation may be2, they are far
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`outweighed by potential prejudice to the Walls Plaintiffs and other stakeholders in this case.
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` 2
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` In particular, the Stewart Plaintiffs’ proposed consolidation would only benefit plaintiffs that had
`purchased Hain products and had filed in the Eastern District of New York, by consolidating
`their claims into a single proceeding; and Hain, in defending against those claims before a single
`judge within this judicial district, would receive the same benefit. But this is where the benefit
`begins and ends for the parties. As explained above, were these cases consolidated in the manner
`proposed by the Stewart Plaintiffs, the Walls Plaintiffs would have to coordinate motion practice,
`discovery, and other processes with regard to all of their claims and theories of liability with
`plaintiffs who have chosen to pursue fewer claims only against Hain under a single theory of
`liability. See Decoteau v. Raemisch, 304 F.R.D. 683, 691 (D. Colo. 2014) (holding consolidation to
`be inappropriate when two actions “do not involve the same parties” and “do not seek the same
`type of relief” even if they arise out of the same issue).
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`8
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`First, the Stewart Plaintiffs’ proposed consolidation cannot avoid the possibility of
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`conflicting outcomes or obligations of the parties. Several proposed class actions have already
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`been filed against Hain in other judicial districts not implicated by the Stewart Plaintiffs’ motion.
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`See, e.g., Anderson v. Hain Celestial Group, Inc., No. 21-cv-00500 (D. Colo.); Johnson et al. v. Beech-Nut
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`Nutrition Co. et al., No. 21-cv-2096 (D. Kan.); Wallace et al. v. Gerber Products Co. et al., No. 21-cv-
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`02531 (D. N.J.); Garces et al. v. Gerber Products Co. et al., No. 21-cv-00719 (N.D. Ill.); Smith et al. v.
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`Hain Celestial Group, Inc., No. 21-cv-00219 (W.D. Mo.). These non-EDNY cases would create
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`potentially numerous divergent outcomes for class members as well as divergent obligations for
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`Hain.
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`Second, the Stewart Plaintiffs’ proposed consolidation would unnecessarily complicate and
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`potentially prejudice the Walls Plaintiffs’ efforts to prove up their claims, which go well beyond
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`those alleged by the Stewart Plaintiffs. As noted above, the Walls Plaintiffs’ claims are more
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`complex and varied than those asserted by the Stewart Plaintiffs. Parents like Michelle Walls
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`purchased organic baby food products from multiple baby food manufacturers, and are seeking,
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`among other things, medical monitoring and damages based on the medical and developmental
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`harm to children who consumed the Walls Defendants’ baby food products.
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`Taken together, the consolidation of the more complex Walls claims with those of the
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`Stewart Plaintiffs “could lead to confusion that might prejudice the Opposing Parties” even
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`though “both actions arise from the same general set of business relations . . . .” KGK Jewelry,
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`2014 WL 7333291, at *3; see also Parker v. Hyperdynamics Corp., 126 F. Supp. 3d 830, 837 (S.D.
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`Tex. 2015) (denying consolidation of action asserting Section 10(b) securities fraud claims with
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`another asserting both Section 10(b) and Foreign Corrupt Practices Act claims); Doug Brady, Inc. v.
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`New Jersey Bldg. Laborers Statewide Funds, 250 F.R.D. 171, 176 (D. N.J. 2008) (“Where the evidence
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`in one case is not relevant to the issues in the other, consolidation would create a likelihood of
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`prejudice by confusing the issues.”).
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`CONCLUSION
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`For all these reasons, the Stewart Plaintiffs’ motion to consolidate should be denied.
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`Date: March 15, 2021
`New York, NY
`
`
`/s/ Christopher K. Leung
`
`Christopher K. Leung
`Max E. Rodriguez
`POLLOCK COHEN LLP
`60 Broad St., 24th Fl.
`New York, NY 10004
`Tel.: (917) 985-3995
`Email: Chris@PollockCohen.com
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`Counsel for Plaintiffs and Proposed Class
`Representatives Michelle Walls and N.W.
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`10
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