Case 2:21-cv-00678-JS-AYS Document 33 Filed 03/15/21 Page 1 of 7 PageID #: 127
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`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF NEW YORK
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`NICOLE STEWART, ELIZABETH
`AGRAMONTE and SUMMER APICELLA,
`on behalf of themselves and all others similarly
`situated,
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`Plaintiffs,
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`-against-
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`HAIN CELESTIAL GROUP, INC.,
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`Defendant.
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`CASE NO.
`2:21-cv-00678-JS-AYS
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`MEMORANDUM OF LAW IN SUPPORT OF GERBER PRODUCTS COMPANY’S
`MOTION TO INTERVENE FOR THE LIMITED PURPOSE OF ADDRESSING AND
`OPPOSING PLAINTIFFS’ MOTION TO CONSOLIDATE
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`Gerber Products Company (“Gerber”), respectfully submits this Memorandum of Law in
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`support of its Motion to Intervene in this action (the “Action”) for the sole purpose of opposing
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`Plaintiffs’ pending motion to consolidate (the “Consolidation Motion”) (Dkt. No. 6) as it relates
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`to Gerber.
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`PRELIMINARY STATEMENT
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`The Consolidation Motion seeks to consolidate all of the actions pending against Hain
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`Celestial Group, Inc. (“Hain”) in the Eastern District of New York stemming from a report issued
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`by a Subcommittee of the U.S. House of Representatives on February 4, 2021 (the “Subcommittee
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`Report”), relating to the alleged presence of heavy metals in certain baby food products. Gerber
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`is an interested party in this Action because the Consolidation Motion, if granted, would
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`consolidate at least three actions in which Gerber is a named defendant with the actions pending
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`(largely only) against Hain in this Court. See Walls v. Beech-Nut Nutrition Co., et al., No. 1:21-
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`1
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`Case 2:21-cv-00678-JS-AYS Document 33 Filed 03/15/21 Page 2 of 7 PageID #: 128
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`cv-00870 (“Walls Action”); Albano, et al. v. Hain Celestial Group, Inc., et al., No. 2:21-cv-01118
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`(“Albano Action”); and Lawrence v. Hain Celestial Group, Inc., et al., No. 21-cv-01287
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`(“Lawrence Action”). Gerber files this motion to inform the Court that it intends to move to sever
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`the claims asserted against it, in this and other districts, stemming from the Subcommittee Report,
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`including in the Walls, Albano, and Lawrence Actions, and to transfer those claims to the District
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`of New Jersey where there currently are five cases stemming from the Subcommittee Report
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`pending against Gerber. Gerber opposes the Consolidation Motion to the extent it seeks to
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`consolidate the claims asserted against Gerber in the Walls, Albano, and Lawrence Actions, and
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`any subsequently filed or transferred action against Gerber that the Consolidation Motion requests
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`to consolidate with the actions pending against Hain in this Court.
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`BACKGROUND
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`The Hain EDNY Cases. The Consolidation Motion seeks to consolidate this Action with
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`the Walls Action, the Albano Action, and at least six other cases,1 as well as any subsequently filed
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`or transferred related actions, including the Lawrence Action (together, the “Hain EDNY Cases”).
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`Gerber is not a party to any action that is subject to the Consolidation Motion, other than the Walls,
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`Albano, and Lawrence Actions.
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`Allegations in the Hain EDNY Cases. The Hain EDNY Cases all allege that Hain’s baby
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`food products are tainted with toxic heavy metals, including arsenic, lead, cadmium, and mercury.
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`These allegations resulted from the Subcommittee Report, relating to the alleged presence of heavy
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`metals in certain baby food products. There have been numerous lawsuits filed around the country
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`1 The other cases are captioned: Bredberg et al. v. The Hain Celestial Group, Inc., No. 2:21-cv-00758; Mays v. Hain
`Celestial Group, Inc., No. 2:21-cv-00805; Boyd v. Hain Celestial Group, Inc., No. 2:21-cv-00884; McKeon et al. v.
`Hain Celestial Group, d/b/a Earth’s Best Organics, No. 2:21-cv-00938; Baumgarten v. The Hain Celestial Group,
`Inc., No. 2:21-cv-00944; and Willoughby v. Hain Celestial Group, d/b/a Earth’s Best Organics, No. 2:21-cv-00970.
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`against various baby food manufacturers based on the same allegations contained in the
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`Subcommittee Report.
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`The Walls, Albano, and Lawrence Actions are the only Hain EDNY Cases that also allege
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`claims against Gerber. In fact, the Consolidation Motion does not even mention any of the
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`complaints’ allegations against Gerber, instead describing the Hain EDNY Cases as “alleg[ing]
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`that certain of Hain’s baby food products (the ‘Tainted Baby Foods’) are and were tainted with
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`significant and dangerous levels of toxic heavy metals,” and that “Hain misrepresented or omitted
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`disclosure of this fact from consumers.” (Dkt. No. 6 at 1-2 (emphases added).)
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`Sever and Transfer Motions. The first-filed action against Gerber related to the subject
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`matter of the Subcommittee Report, to the best of Gerber’s knowledge, was filed on February 5,
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`2021, in the District of New Jersey, and is pending before Judge Claire C. Cecchi. Shepard v.
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`Gerber Products Company, No. 2:21-cv-01977 (D.N.J.) (“Shepard Action”).2 At least four other
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`cases since Shepard have been filed against Gerber in the District of New Jersey and are all
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`pending before Judge Cecchi. (Moore v. Gerber Products Company, No. 2:21-cv-02516 (“Moore
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`Action”); Wallace et. al. v. Gerber Products Company, et. al., No. 2:21-cv-02531 (“Wallace
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`Action”); Cantor, et. al. v. Gerber Products Company, No. 2:21-cv-03402 (“Cantor Action”); and
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`Pierre-Louis v. Gerber Products Company, No. 2:21-cv-4791 (“Pierre-Louis Action”) (together,
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`the “New Jersey Gerber Actions”)).
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`The plaintiffs’ joinder of Gerber in the Walls, Albano and Lawrence Actions is improper.
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`By asserting claims against all of the defendants in each of those actions, those plaintiffs have
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`failed to comply with Rule 20(a)(2) of the Federal Rules of Civil Procedure, which provides, in
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`2 On March 12, 2021, plaintiffs in the Shepard Action filed a motion to consolidate the New Jersey Gerber Actions
`before Judge Cecchi in the District of New Jersey.
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`3
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`relevant part, that claims that do not arise out of the same transaction or occurrence should not be
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`joined in one lawsuit. None of the plaintiffs in any of the Hain EDNY Cases that are subject to
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`the Consolidation Motion allege any facts that could establish that the defendants acted pursuant
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`to a common scheme or plan. Nor do they allege that defendants are jointly and severally liable
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`for the plaintiffs’ alleged damages. The plaintiffs fail to allege any facts that show a necessary
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`relationship between the defendants; if anything, the plaintiffs’ allegations make clear that their
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`claims against each defendant are separate and distinct. For that reason, Gerber intends to sever
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`the claims made against it in those and other cases where it is joined with other defendants and
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`transfer those claims to the District of New Jersey.3
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`Multidistrict Litigation. On March 8, 2021, plaintiffs in the Albano Action filed a motion
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`with the United States Judicial Panel on Multidistrict Litigation for consolidation and transfer of
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`the various cases stemming from the House Subcommittee Report (“JPML Motion”). The JPML
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`Motion seeks to transfer all of the “Related Actions”4 to the Eastern District of New York. This
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`Action, along with the Walls, Albano, and Lawrence Actions, are subject to the JPML Motion. In
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`its order issuing a briefing schedule on the JPML Motion, the JPML ordered the parties to “address
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`what steps they have taken to pursue alternatives to centralization (including, but not limited to,
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`engaging in informal coordination of discovery and scheduling, and seeking Section 1404 transfer
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`of one or more of the subject cases).” In Re: Baby Food Marketing, Sales Practices and Products
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`Liability Litigation, MDL No. 2997 (Dkt. No. 3) (J.P.M.L.).
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`3 Gerber is prepared to brief this issue in more detail at the Court’s direction and convenience.
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`4 The JPML Motion involves at least 43 actions, including 38 proposed class actions, pending in 12 different federal
`district courts.
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`STANDARD
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`A motion to intervene may be granted under Fed. R. Civ. P. 24(b)(1)(B) for anyone who,
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`on timely motion, “has a claim or defense that shares with the main action a common question of
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`law or fact.” In exercising its discretion, the court should consider factors that include
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`[T]he nature and extent of the intervenors’ interests, the degree to which those
`interests are adequately represented by other parties, and whether parties
`seeking intervention will significantly contribute to [the] full development of
`the underlying factual issues in the suit and to the just and equitable
`adjudication of the legal questions presented.
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`Berroyer v. United States, 282 F.R.D. 299, 302-03 (E.D.N.Y. 2012) (internal quotations omitted).
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`The test is “flexible and courts generally look at all of the factors rather than focusing narrowly on
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`any one of the criteria.” Mass. Bricklayers and Mason Funds v. Deutsche Alt-A Secs., 273 F.R.D.
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`363, 365 (E.D.N.Y. 2011).
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`ARGUMENT
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`The requirements for intervention for the limited purpose of opposing the Consolidation
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`Motion as to Gerber are satisfied here. First, given that Gerber is a party to the Walls, Albano, and
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`Lawrence Actions, which are the subject of the pending Consolidation Motion (Dkt. No. 6), the
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`question of whether consolidation is appropriate as to Gerber presents a “common question of law”
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`and procedure in this Action. In addition, all of the Hain EDNY Cases, including the Walls,
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`Albano, and Lawrence Actions, appear to stem from the Subcommittee Report. (Albano Compl.
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`¶¶ 4, 29; Walls Compl. ¶¶ 5, 6, 19-28; Lawrence Compl. ¶¶ 1, 28-31; Bredberg Compl. ¶¶ 2-5, 23-
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`25, 31; Mays Compl. ¶¶ 23, 25; Boyd Compl. ¶¶ 7, 8, 27, 30-32; McKeon Compl. ¶¶ 9-11, 34-36;
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`Baumgarten Compl. ¶¶ 7-11, 15; Willoughby Compl. ¶¶ 9-11, 34-36.)
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`Second, Gerber has an interest in this Action because, if the Consolidation Motion is
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`granted, it will consolidate claims asserted against Gerber with claims that do not pertain to Gerber
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`in any way and instead apply only to Hain. The Walls, Albano, and Lawrence Actions, in which
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`Gerber is a defendant, contain Gerber-specific allegations and causes of action that are not present
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`in the other EDNY Actions. (Albano Compl. ¶¶ 7, 25, 108-123; Walls Compl. ¶¶ 14, 31, 32, 40,
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`54; Lawrence Compl. ¶¶ 19, 37, 42.) Moreover, as noted, Gerber is not a defendant in this Action,
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`or any of at least six other Hain EDNY Cases subject to the Consolidation Motion, which therefore
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`do not pertain to Gerber. In fact, almost all of the underlying alleged facts outlined in the
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`Consolidation Motion relate only to Hain—not to Gerber. Given the absence of claims against
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`Gerber in at least seven of the pending Hain EDNY Cases, consolidating the claims asserted
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`against Gerber in the Walls, Albano, and Lawrence Actions with the claims predominantly asserted
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`against Hain in the Hain EDNY Cases will not result in efficiencies. This is especially true in light
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`of the fact that Gerber intends to move to sever the claims asserted against it in those (and other)
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`actions and transfer them to the District of New Jersey where there are currently five actions
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`pending against it, all before the same judge, and all currently the subject to a motion to consolidate
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`there. Consolidation of the claims asserted against Gerber in the Walls, Albano and Lawrence
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`Actions with the other Hain EDNY will not result in efficiencies where Gerber will regardless be
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`defending itself in the District of New Jersey.
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`Third, because Gerber is not a party to this Action, its interests with respect to the
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`Consolidation Motion are not adequately represented by any other party.
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`Finally, allowing Gerber to intervene for the sole and limited purpose of opposing the
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`Consolidation Motion as it pertains to the claims asserted against Gerber will enable Gerber to
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`inform the Court regarding the procedural implications of the Consolidation Motion. Given that
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`Gerber is not a party to this Action, it lacks a mechanism to otherwise apprise the Court of its
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`intentions with respect to severing and transferring the claims asserted against it in other cases,
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`including the Hain EDNY Cases. In addition, because this Motion to Intervene is timely filed, as
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`the Motion to Consolidate was filed only 15 days ago, this limited intervention similarly will not
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`prejudice any of the named parties and will not cause undue delay.
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`CONCLUSION
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`Gerber requests to intervene for the limited purpose of (i) opposing the Consolidation
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`Motion to the extent it seeks to consolidate the claims asserted against Gerber in the Hain EDNY
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`Cases with the claims asserted against Hain and other defendants in those cases, and (ii) alerting
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`this Court to the New Jersey Gerber Actions and Gerber’s intention to move to sever the claims
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`asserted against Gerber in the Hain EDNY Cases and transfer them to the District of New Jersey.
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`DATED:
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`March 15, 2021
`New York, New York
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`Respectfully submitted,
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`KELLEY DRYE & WARREN LLP
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`/s/ Geoffrey W. Castello, III
`Geoffrey W. Castello, III
`Glenn T. Graham
`3 World Trade Center
`175 Greenwich Street
`New York, NY 10007
`(212) 808-7800
`gcastello@kelleydrye.com
`ggraham@kelleydrye.com
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`WHITE & CASE LLP
`Bryan A. Merryman (pro hac vice motion forthcoming)
`Catherine S. Simonsen (pro hac vice motion
`forthcoming)
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`555 South Flower Street, Suite 2700
`Los Angeles, CA 90071-2433
`T: (213) 620-7700
`F: (213) 452-2329
`bmerryman@whitecase.com
`catherine.simonsen@whitecase.com
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`Attorneys for Gerber Products Company
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