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`CASE NO.
`2:21-cv-00678-JS-AYS
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`2:21-cv-00758
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`2:21-cv-00805
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`Plaintiffs,
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`-against-
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`Plaintiffs,
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`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF NEW YORK
`-------------------------------------------------------- X
`NICOLE STEWART, ELIZABETH
`AGRAMONTE and SUMMER APICELLA,
`on behalf of themselves and all others similarly
`situated,
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`-against-
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`Plaintiffs,
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`HAIN CELESTIAL GROUP, INC.,
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`Defendant.
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`-------------------------------------------------------- X
`SALLY BREDBERG and REBECCA
`BROMBERG, individually and on behalf of
`all others similarly situated,
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`THE HAIN CELESTIAL GROUP, INC.,
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`Defendant.
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`-------------------------------------------------------- X
`ALYSSA MAYS, individually and on behalf
`of all others similarly situated,
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`HAIN CELESTIAL GROUP, INC.,
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`Defendant.
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`-------------------------------------------------------- X
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`Case 2:21-cv-00678-JS-AYS Document 19-1 Filed 02/28/21 Page 2 of 14 PageID #: 72
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`Plaintiffs,
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`Defendants.
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`Plaintiff,
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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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`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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`-------------------------------------------------------- X
`LEE BOYD, individually and on behalf of all
`others similarly situated,
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`HAIN CELESTIAL GROUP, INC.,
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`Defendant.
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`-------------------------------------------------------- X
`KELLY MCKEON, RENEE BRYAN, and
`MARILYN CARSON, individually and on
`behalf of all others similarly situated,
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`HAIN CELESTIAL GROUP, d/b/a Earth’s
`Best Organics,
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`Defendant.
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`-------------------------------------------------------- X
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`1:21-cv-00870
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`2:21-cv-00884
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`2:21-cv-00938
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`Case 2:21-cv-00678-JS-AYS Document 19-1 Filed 02/28/21 Page 3 of 14 PageID #: 73
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`Plaintiff,
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`Plaintiff,
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`LEIBA BAUMGARTEN, individually and on
`behalf of all others similarly situated,
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`THE HAIN CELESTIAL GROUP, INC.,
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`Defendant.
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`CHARLOTTE WILLOUGHBY,
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`HAIN CELESTIAL GROUP, d/b/a Earth’s
`Best Organics,
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`Defendant.
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`2:21-cv-00944
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`2:21-cv-00970
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`MEMORANDUM OF LAW IN SUPPORT OF THE STEWART PLAINTIFFS’
`MOTION FOR CONSOLIDATION AND TO SET DEADLINES
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`Case 2:21-cv-00678-JS-AYS Document 19-1 Filed 02/28/21 Page 4 of 14 PageID #: 74
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`I.
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`INTRODUCTION
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`Plaintiffs Nicole Stewart, Elizabeth Agramonte and Summer Apicella (“the Stewart
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`Plaintiffs”), by and through their undersigned counsel, respectfully submit this memorandum of
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`law in support of their motion for consolidation of the above-captioned actions against Hain
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`Celestial Group, Inc. (“Defendant” or “Hain”), as well as any subsequently filed or transferred
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`related actions, for all purposes, including pretrial proceedings and trial, pursuant to Federal Rule
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`of Civil Procedure 42(a) (“Rule 42(a)”), and to set certain deadlines regarding the filing of motions
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`for interim class counsel and a consolidated amended complaint should the Court grant
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`consolidation.. The Stewart Action was the first-filed, and is thus the low-numbered case, in this
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`District.1
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`Eight similar actions (the “Related Actions”)2 concerning similar facts and allegations are
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`currently pending before this Court. The Related Actions each allege that certain of Hain’s baby
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`1 Defendant stated in a letter filed with the Court on February 26, 2021 (ECF No. 18) that it
`sought a 45-day extension of its deadline to file a responsive pleading so it could “have
`additional time to investigate the factual allegations set forth in Plaintiffs’ complaint and
`consider whether, and how, this lawsuit should be coordinated with the numerous other lawsuits
`pending in federal courts around the country” against Hain, stating that the Stewart Plaintiffs
`consented to the extension. While the Stewart Plaintiffs did consent to an extension for
`Defendant’s responsive pleading, they had informed Defendant that they were making a motion
`for consolidation and twice sought Defendant’s position on this Motion. While Defendant has
`not yet responded, the Stewart Plaintiffs did not consent to allow Defendant 45 days to consider
`how to handle the very few other lawsuits against Hain filed outside this District. As noted
`below, eight such lawsuits are pending in this District and only three elsewhere. Notably,
`Defendant Hain is a citizen of the State of New York with its principal place of business in Lake
`Success, New York in the Eastern District of New York, Central Islip Division.
`2 Stewart v. Hain Celestial Group, Inc., Case No. 2:21-cv-00678-JYS (E.D.N.Y.); Bredberg v.
`The Hain Celestial Group, Inc., Case No. 2:21-cv-00758 (E.D.N.Y.); Mays v. Hain Celestial
`Group, Inc., Case No. 2:21-cv-00805 (E.D.N.Y.); Walls et al v. Beech-Nut Nutrition Corp. et al,
`Case No. 1:21-cv-00870 (E.D.N.Y.); Boyd v. Hain Celestial Group, Inc., Case No. 2:21-cv-
`00884 (E.D.N.Y.); McKeon v. Hain Celestial Group, d/b/a Earth’s Best Organics, Case No.
`2:21-cv-00938 (E.D.N.Y.); Baumgarten v. The Hain Celestial Group, Inc. et al, Case No. 2:21-
`cv-00944 (E.D.N.Y.); and Willoughby v. Hain Celestial Group, d/b/a Earth’s Best Organics,
`Case No. 2:21-cv-00970 (E.D.N.Y.).
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`1
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`Case 2:21-cv-00678-JS-AYS Document 19-1 Filed 02/28/21 Page 5 of 14 PageID #: 75
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`food products (the “Tainted Baby Foods”) are and were tainted with significant and dangerous
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`levels of toxic heavy metals, including arsenic, lead, cadmium, and mercury (the “Heavy Metals”),
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`and that Hain misrepresented or omitted disclosure of this fact from consumers. Each Related
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`Action seeks, inter alia, injunctive relief barring Hain from continuing to misrepresent the truth
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`about its products as well as monetary damages compensating for the purchase of the Tainted Baby
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`Foods. The Related Actions present similar factual and legal issues and will involve the same or
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`similar discovery. Accordingly, consolidation of the actions into a single action is called for under
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`Fed. R. Civ. P. 42(a).3 Through their respective class actions, plaintiffs in the Related Actions
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`allege a combination of various state consumer protection statutes and other common law causes
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`of action against Defendant Hain.4
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`The Stewart Plaintiffs respectfully request that the Related Actions be consolidated into a
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`single action under their lowest numbered action.5 The power to consolidate related actions falls
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`3 In addition to the Related Actions, the following substantially similar cases were filed against
`Hain in other federal district courts: Garces v. Gerber Products Co. et al, Case No. 1:21-cv-00719
`(N.D. Ill.), Wallace et al v. Gerber Products Co. et al, Case No. 2:21-cv-02531 (D.N.J.), Johnson
`v. Beech-Nut Nutrition Company et al, Case No. 2:21-cv-02096 (D. Kan.), and Mays v. Hain
`Celestial Group, Inc., Case No. 1:21-cv-01185 (S.D.N.Y.). The Mays case has since been
`voluntarily dismissed and refiled in the E.D.N.Y. and is one of the Related Actions included herein.
`Thus, at this time, there appear to be three cases against Hain pending in other jurisdictions. All
`such cases name multiple defendants, including Hain.
`4 The causes of action alleged include: violations of, among others, New York, California, Illinois,
`Ohio, Minnesota, and Florida state consumer protection act statutes, unjust enrichment, fraudulent
`concealment, intentional misrepresentation, negligent misrepresentation, breach of express
`warranty, breach of implied warranty of merchantability, negligence, gross negligence, strict
`product liability, fraudulent misrepresentation, and fraud by omission.
`5 The Walls action, Walls et al v. Beech-Nut Nutrition Corp. et al, Case No. 1:21-cv-00870
`(E.D.N.Y.), is the sole case filed in this District to name several defendants in the complaint in
`addition to Defendant Hain. However, given that the Walls complaint is substantially the same as
`the other Related Action complaints as to Defendant Hain, the Stewart Plaintiffs propose that the
`Walls action be consolidated at this time to the extent it names Hain as a defendant therein, which
`can be revisited and revised following appearances by those defendants other than Hain and the
`Court’s examination and any rulings regarding how that case will be handled in light of the
`multiple defendants. See Fed. R. Civ. P. 42(a)(3) (“If actions before the court involve a common
`2
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`

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`Case 2:21-cv-00678-JS-AYS Document 19-1 Filed 02/28/21 Page 6 of 14 PageID #: 76
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`within the broad inherent authority of every court “to control the disposition of the causes on its
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`docket with economy of time and effort for itself, for counsel, and for litigants.” Landis v. N. Am.
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`Co., 299 U.S. 248, 254 (1936); Johnson v. Celotex Corp., 899 F.2d 1281, 1284 (2d Cir. 1990)
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`(district court has “broad discretion to determine whether consolidation is appropriate.”).
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`Here, the Stewart Plaintiffs respectfully propose that consolidation of the Related Actions
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`is warranted, as the actions require proof of the same basic set of facts. Specifically, each of the
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`Related Actions focuses on whether Hain is liable to consumers for its alleged misrepresentations
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`and omissions regarding the true level of Heavy Metals contained in the Tainted Baby Foods.
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`Since the Related Actions pending before this Court present essentially the same factual and legal
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`issues, involve the same defendant, and will involve substantially the same discovery,
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`consolidation is appropriate. See, e.g., Crumrine v. Vivint Solar, Inc., No. 19-CV-5777 (FB) (JO),
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`2020 U.S. Dist. LEXIS 50090 (E.D.N.Y. Mar. 23, 2020) (consolidation appropriate where separate
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`class actions are “substantially similar.”) (citing Fed. R. Civ. P. 42(a)). The Related Actions
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`present similar factual and legal issues and will involve the same or similar discovery.
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`Accordingly, consolidation of the actions is called for under Rule 42(a).
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`II.
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`FACTUAL BACKGROUND
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`These Related Actions all arise out of a recent report dated February 4, 2021, Baby Foods
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`Are Tainted with Dangerous Levels of Arsenic, Lead, Cadmium, and Mercury (“the Congressional
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`Report”), issued by the Subcommittee on Economic and Consumer Policy, Committee on
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`Oversight and Reform, U.S. House of Representatives (“the House Subcommittee”).6 The
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`question of law or fact, the court may: …(3) issue any other orders to avoid unnecessary cost or
`delay.”).
`6 Available at https://oversight.house.gov/sites/democrats.oversight.house.gov/files/2021-02-
`04%20ECP%20Baby%20Food%20Staff%20Report.pdf (last accessed February 26, 2021).
`3
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`Case 2:21-cv-00678-JS-AYS Document 19-1 Filed 02/28/21 Page 7 of 14 PageID #: 77
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`Congressional Report issued detailed findings that Heavy Metals, including arsenic, cadmium,
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`lead, and mercury, were present in dangerously “significant levels” in numerous commercial baby
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`food products, including those of Defendant. See Stewart Complaint ¶ 1. The Food and Drug
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`Administration (the “FDA”) and the World Health Organization (“WHO”) have declared Heavy
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`Metals dangerous to human health, particularly to babies and children, who are most vulnerable to
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`their neurotoxic effects. See id. at ¶ 18. Even low levels of exposure can cause serious and often
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`irreversible damage to brain development. See id. (citing Congressional Report at 2). In fact,
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`children’s exposure to toxic heavy metals causes, among other things, permanent decreases in IQ,
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`diminished future economic productivity, and increased risk of future criminal and antisocial
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`behavior. See id. (citing Congressional Report at 9).7 The FDA cautions that infants and children
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`are at the greatest risk of harm from toxic heavy metal exposure. See id.8. All of the Related
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`Actions rely on the Congressional Report to allege substantially similar allegations in each case.
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`The Congressional Report arose out of reports alleging high levels of toxic Heavy Metals
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`in baby foods, as a result of which the House Subcommittee requested internal documents and test
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`results from seven of the largest manufacturers of baby food in the United States, including both
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`makers of organic and conventional products. See id. at ¶ 19. One of those companies was
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`Defendant Hain, which responded to the House Subcommittee’s requests and produced its internal
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`testing policies, test results for ingredients and/or finished products, and documentation about what
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`it did with ingredients and/or finished products that exceeded its internal testing limits. See id.
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`7 See also Miguel Rodriguez-Barranco et al., Association of Arsenic, Cadmium and Manganese
`Exposure with Neurodevelopment and Behavioral Disorders in Children: A Systematic Review
`and Meta-Analysis (April 9, 2013) –
`www.sciencedirect.com/science/article/abs/pii/S0048969713003409?via%3Dihub) (last accessed
`February 26, 2021).
`8 See Food and Drug Administration, Metals and Your Food – www.fda.gov/food/chemicals-
`metals-pesticides-food/metals-and-your-food) (last accessed February 26, 2021).
`4
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`The FDA and other organizations have set rules and/or issued guidelines and recommendations as
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`to the maximum allowable or advisable and safe levels of inorganic arsenic, lead, cadmium and
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`mercury in various circumstances, and the test results of Hain (Earth’s Best Organic) baby foods
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`eclipse those levels for inorganic arsenic, lead and cadmium. See id. at 21 (citing Congressional
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`Report at Findings, Paragraph 1). Shockingly, Hain does not even test for mercury in its baby
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`food. See id.
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`According to the Congressional Report, Hain sold finished baby food products containing
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`as much as 129 ppb inorganic arsenic. See id. at ¶ 22. Hain typically only tested its ingredients,
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`not finished products and documents showed that Hain used ingredients testing as high as 309 ppb
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`arsenic. See id. Hain used ingredients containing as much as 352 ppb lead. See id. at ¶ 23. Hain
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`also used 102 ingredients in its baby food that tested over 20 ppb cadmium, with some testing
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`much higher, up to 260 ppb cadmium. See id. at ¶ 24.
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`The Congressional Report revealed that Hain’s internal company standards permit
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`dangerously high levels of toxic Heavy Metals, and documents revealed that Hain has often sold
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`baby foods that exceeded even its own inadequate internal standards. See id. at ¶ 26. For example,
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`Hain’s internal standard is 200 ppb for arsenic, lead and cadmium in some of its ingredients but
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`Hain exceeded its internal policies, using ingredients containing 353 ppb lead and 309 ppb arsenic.
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`See id. Hain attempted to justify deviations above its internal ingredient testing standards based
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`on “theoretical calculations,” even after admitting to the FDA that its internal testing
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`underestimated final product toxic Heavy Metal levels. Id.
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`The Congressional Report stated that a secret industry presentation was made to federal
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`regulators revealing increased risks of dangerous levels of toxic Heavy Metals in baby foods. On
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`5
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`August 1, 2019, the FDA received a secret slide presentation from Hain which revealed
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`(Congressional Report at Findings, ¶ 4) that:
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`Corporate policies to test only ingredients, not final products, underrepresent the
`levels of toxic heavy metals in baby foods. In 100% of the Hain baby foods tested,
`inorganic arsenic levels were higher in the finished baby food than the company
`estimated they would be based on individual ingredient testing. Inorganic arsenic
`was between 28% and 93% higher in the finished products.
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`Many of Hain’s baby foods were tainted with high levels of inorganic arsenic – half
`of its brown rice baby foods contained over 100 ppb inorganic arsenic; its average
`brown rice baby food contained 97.62 ppb inorganic arsenic; and
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`Naturally occurring toxic heavy metals may not be the only problem causing the
`unsafe levels of toxic heavy metals in baby foods; rather, baby food producers like
`Hain may be adding ingredients that have high levels of toxic heavy metals into
`their products, such as vitamin/mineral pre-mix.
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`Stewart Complaint ¶ 27. To this day, baby foods containing dangerous levels of toxic Heavy
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`Metals bear no label or warning to parents. But the Congressional Report makes clear that this is
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`unacceptable and deceptive. See id. at ¶ 28. As a result of its studies of toxic Heavy Metal levels
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`in baby food, the House Subcommittee has recommended that parents should avoid baby foods
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`that contain ingredients testing high in toxic Heavy Metals, such as rice products. See id. at ¶ 29
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`(citing Congressional Report Findings, Paragraph 5).
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`Baby food manufacturers hold a special position of public trust. Consumers believe that
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`they would not sell products that are unsafe. Consumers also believe that the federal government
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`would not knowingly permit the sale of unsafe baby food. As the Congressional Report reveals,
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`baby food manufacturers (including Hain (Earth’s Best Organic)) have violated the public trust.
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`See id. at ¶ 30 (citing Congressional Report Findings, Paragraph 6).
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`Defendant’s Tainted Baby Foods are available at numerous retail and online outlets and
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`are widely advertised. See id. at ¶ 35. Despite the conclusions in the Congressional Report
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`regarding the presence of dangerous levels of Heavy Metals in Hain’s Tainted Baby Foods, on its
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`6
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`Case 2:21-cv-00678-JS-AYS Document 19-1 Filed 02/28/21 Page 10 of 14 PageID #: 80
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`website, Defendant Hain describes its “Earth’s Best Organic” line of products as “time-trusted and
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`safe” and claims said products “are produced without the use of potentially harmful pesticides.”
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`Id. at ¶ 33; see also id. at 11-12 (citing http://www.hain.com/company/) (Hain states on its website
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`that its mission is “to be the leading marketer, manufacturer and seller of organic and natural better-
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`for-you products” and emphasizes its ability to create and inspire “A Healthier Way of Life” for
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`children through its products). Based on Defendant’s decision to advertise, label, and market its
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`Tainted Baby Foods as healthy, nutritious, and safe for consumption, it had a duty to ensure that
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`these and other statements were true and not misleading, which it failed to do. See id. at ¶ 34.
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`Defendant Hain mislead reasonable consumers to purchase its Tainted Baby Foods to their
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`detriment and the Related Actions all uniformly seek appropriate remedies for such substantially
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`similar violations.
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`III.
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`ARGUMENT
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`By this motion, the Stewart Plaintiffs request that the Related Actions—which involve
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`materially similar allegations against Defendant and seek to certify materially similar classes—be
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`consolidated.
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`A.
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`The Related Actions should be consolidated.
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`The power to consolidate related actions falls within the broad inherent authority of every
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`court “to control the disposition of the causes on its docket with economy of time and effort for
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`itself, for counsel, and for litigants.” Landis v. N. Am. Co., 299 U.S. 248, 254 (1936).
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`Consolidation of actions in federal court is governed by Rule 42 of the Federal Rules of Civil
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`Procedure, which provides:
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`When actions involving a common question of law or fact are pending before
`the court, it may order a joint hearing or trial of any or all the matters in issue
`in the actions; it may order all the actions consolidated; and it may make such
`orders concerning proceedings therein as may tend to avoid unnecessary costs
`or delay.
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`
`7
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`

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`Case 2:21-cv-00678-JS-AYS Document 19-1 Filed 02/28/21 Page 11 of 14 PageID #: 81
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`Rule 42(a); see also Johnson v. Celotex Corp., 899 F.2d 1281, 1284 (court has “broad discretion
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`to determine whether consolidation is appropriate.”).
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`Consolidation is appropriate pursuant to Rule 42(a) when actions “involve common
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`questions of law or fact.” Xu v. Gridsum Holding Inc., 2018 WL 4462363, at *3 (S.D.N.Y. Sept.
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`17, 2018). Here, consolidation of the Related Actions is warranted, as the actions require proof of
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`the same basic set of facts based upon the same Congressional Report under the same or
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`substantially similar laws. Specifically, each of the Related Actions focuses on whether Hain is
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`liable to Plaintiffs and Class Members for its Tainted Baby Foods that contained dangerous levels
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`of toxic Heavy Metals, and its misrepresentations and omissions regarding same. Since the
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`Related Actions pending before this Court present the same factual and legal issues, involve the
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`same defendant, and will involve substantially the same discovery, consolidation is appropriate.
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`See Simmons v. Spencer, 2014 U.S. Dist. LEXIS 58743, at *6-7 (S.D.N.Y. Apr. 24, 2014)
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`(consolidation appropriate where “factual and legal allegations underlying all class definitions
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`sufficiently overlap”).
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`Indeed, if not consolidated, the separate Related Actions would result in virtually identical
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`discovery requests, duplicative motion practice, and would cause an unnecessary drain on judicial
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`resources. And this is true despite minor variations in class definitions and state-specific causes
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`of action in the Related Actions. See Simmons, 2014 U.S. Dist. LEXIS 58743, at *6-7 (despite
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`“minor differences” in class definitions, court consolidated various class actions involving
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`common questions of law and fact because, inter alia, the “factual and legal allegations underlying
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`all class definitions sufficiently overlap.”).
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`In addition, to ensure continued judicial efficiency, the Stewart Plaintiffs also respectfully
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`submit that the Court should order that any future actions that are filed or transferred to this Court
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`8
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`

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`based on the same or similar facts and circumstances be consolidated with the Related Actions.
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`See, e.g., Sklar v. Bank of Am. Corp. (In re Bank of Am. Corp. Sec., Derivative & ERISA Litig.),
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`258 F.R.D. 260, 274 (S.D.N.Y. 2009) (“Future cases raising common questions of law and fact
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`filed in this Court or transferred to this Court will also be consolidated into the appropriate
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`consolidated case.”).
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`Defendant will suffer no prejudice by litigating one consolidated action rather than eight
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`—or more—separate suits. Consolidation of the Related Actions would therefore inure to the
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`benefit of all parties involved as well as the Court.
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`Finally, with respect to scheduling issues, the Stewart Plaintiffs respectfully request that
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`the Court set the deadline for the filing of motions seeking interim lead counsel appointment
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`pursuant to Fed. R. Civ. P. 23(g) for ten (10) business days following the entry of the consolidation
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`order, should the Court grant the instant motion. In addition, the Stewart Plaintiffs respectfully
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`request that the Court set a deadline for the filing of a consolidated amended complaint for the
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`Related Actions, should consolidation be granted, for 45 days following the entry of an order under
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`Rule 23(g).
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`IV.
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`CONCLUSION
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`For all of the foregoing reasons, Plaintiffs respectfully request that the Related Actions be
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`consolidated for all purposes.
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`Respectfully submitted,
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` /s/ Janine L. Pollack___________________
`Janine L. Pollack, Esq.
`CALCATERRA POLLACK LLP
`1140 Avenue of the Americas
`9th Floor
`New York, New York 10036
`Phone: (917) 899-1765
`Fax: (332) 206-2073
`Email: jpollack@calcaterrapollack.com
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`9
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` GEORGE GESTEN MCDONALD, PLLC
`Lori G. Feldman (LF-3478)
`102 Half Moon Bay Drive
`Croton-on-Hudson, New York 10520
`Phone: (561) 232-6002
`Fax: (888) 421-4173
`LFeldman@4-Justice.com
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`GEORGE GESTEN MCDONALD, PLLC
`David J. George, Esq. (pro hac vice forthcoming)*
`9897 Lake Worth Road, Suite 302
`Lake Worth, FL 33463
`Phone: (561) 232-6002
`Fax: (888) 421-4173
`DGeorge@4-Justice.com
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`Attorneys for Plaintiffs Nicole Stewart, Elizabeth
`Agramonte and Summer Apicella and the Proposed
`Class in the Stewart Action
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`10
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`Case 2:21-cv-00678-JS-AYS Document 19-1 Filed 02/28/21 Page 14 of 14 PageID #: 84
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`CERTIFICATE OF SERVICE
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`The undersigned hereby certifies that on February 28, 2021, the foregoing was filed
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`electronically. Notice of this filing will be sent to all parties by operation of the Court’s electronic
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`filing system. Parties may access this filing through the Court’s system.
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` /s/ Janine L. Pollack
` Janine L. Pollack
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`11
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