`
`
`
`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF NEW YORK
`
`
`NICOLE STEWART, ELIZABETH
`AGRAMONTE, and SUMMER APICELLA, on
`behalf of themselves and all others similarly situated,
`
`
`
`
`Plaintiffs,
`
`v.
`
`HAIN CELESTIAL GROUP, INC.,
`
`Defendant.
`
`
`
`Case No. 2:21-cv-00678-JYS-AYS
`
`
`
`ECF Case
`
`
`
`
`
`NON-PARTY NURTURE INC’S OPPOSITION TO MOTION TO CONSOLIDATE
`
`
`
`Non-party Nurture Inc., appearing specially and solely for the purpose of this response,
`
`submits this opposition to the Motion to Consolidate. Dkt. No. 19.1
`
`I.
`
`PRELIMINARY STATEMENT
`
`By their Motion to Consolidate, the Plaintiffs in this action (the “Stewart Plaintiffs”) seek
`
`to consolidate all cases filed in this District against Hain Celestial Group, Inc., which allege that
`
`certain of Hain’s baby food products contain dangerous levels of toxic heavy metals. Three of
`
`these actions, however, also include claims against other defendants, including Nurture, Inc.,
`
`concerning their baby food products. Nurture respectfully submits that actions in which Nurture is
`
`a defendant are inappropriate for consolidation with the cases in which Hain is a defendant because
`
`of idiosyncrasies between the defendants and their products that make these cases inappropriate
`
`
`1Nurture is not a named party to this action, but is named in three other actions which the Stewart
`Plaintiffs seek to consolidate: Walls v. Beech-Nut Nutrition Co., et al., No. 21-cv-00870 (E.D.N.Y.
`Feb. 17, 2021); Albano v. Hain Celestial Grp., Inc., et al., No. 21-cv-01118 (E.D.N.Y. Mar. 2,
`2021); and Lawrence v. Hain Celestial Grp., Inc., et al., No. 21-cv-01287 (E.D.N.Y. Mar. 10,
`2021). Nurture has not yet been served in Lawrence and its responses to the Complaints in Walls
`and Albano are not yet due, therefore Nurture specially appears solely to file this opposition to the
`Motion out of an abundance of caution so as not to waive its ability to object to the Motion. Nurture
`does so without waiving any rights or defenses that Nurture has or may assert in any action pending
`against it.
`
`
`
`
`
`
`Case 2:21-cv-00678-JS-AYS Document 37 Filed 03/15/21 Page 2 of 5 PageID #: 156
`
`
`
`for consolidation. At the proper time, Nurture will move to be severed from these actions, and
`
`therefore opposes consolidation of the cases to which it is a party.
`
`II.
`
`STATEMENT OF FACTS
`
`On February 4, 2021, the United States House of Representatives Subcommittee on
`
`Economic and Consumer Policy, Committee on Oversight and Reform, issued a report (the
`
`“Report”) alleging that certain heavy metals are present in commercial baby food products at
`
`potentially harmful levels. Since the issuance of the Report, approximately 60 class actions have
`
`been filed nationwide against the seven makers of baby food mentioned in the Report, including
`
`15 cases against Nurture. Nurture disputes the health-risk-related statements in the Report and
`
`denies the allegations against Nurture in this and all suits in which Nurture is named. On February
`
`28, 2021, the Stewart Plaintiffs filed the Motion to Consolidate, seeking to consolidate all cases
`
`filed in this District against Hain concerning its baby foods. See Dkt. No. 19. The Motion was
`
`subsequently been filed in or purports to apply to all cases pending in this District in which Hain
`
`is a defendant, which as of the filing of this opposition was 15 cases. Only 3 of these 15 actions
`
`include claims against defendants besides Hain. Nurture is a named party to all 3, but has only
`
`recently been served in 2 of those actions.
`
`III. ARGUMENT
`
`Federal Rule of Civil Procedure 42 provides that, when “actions before the court involve a
`
`common question of law or fact, the court may: (1) join for hearing or trial any or all matters at
`
`issue in the actions; (2) consolidate the actions; or (3) issue any other orders to avoid unnecessary
`
`cost or delay.” Fed. R. Civ. P. 42(a). Under Fed. R. Civ. P. 42, the burden at all times remains with
`
`the plaintiff to demonstrate that consolidation is appropriate. Weiss v. Nat’l Westminster Bank
`
`PLC, No. 05-cv-4622-DLI-RML, 2017 WL 10058916, at *3 (E.D.N.Y. Mar. 31, 2017). Even when
`
`actions involve a common question of law or fact, the trial court has broad discretion to determine
`
`
`
`-2-
`
`
`
`Case 2:21-cv-00678-JS-AYS Document 37 Filed 03/15/21 Page 3 of 5 PageID #: 157
`
`
`
`whether consolidation is appropriate by balancing the economy gained from consolidation with
`
`the prejudice to the parties. Gristede’s Foods, Inc. v. Poospatuck (Unkechauge) Nation, No. 06-
`
`cv-1260-KAM, 2009 WL 3644159, at *3 (E.D.N.Y. Oct. 27, 2009).
`
`The Stewart Plaintiffs fail to show that consolidation of the claims against multiple
`
`defendants is appropriate because, while the claims against the various defendants may
`
`superficially appear similar, many varied individual issues predominate given that the respective
`
`defendants are competitors situated quite differently with different accused products. While all
`
`defendants indeed manufacture baby foods, their products and their product marketing are plainly
`
`different in important ways. These differences mean the facts and required proof vary significantly
`
`between each defendant. Discovery will also differ between defendants as the fact witnesses and
`
`physical evidence relevant to the plaintiffs’ claims against each defendant are distinct and will not
`
`overlap. And because defendants are competitors, the consolidation of cases against them increases
`
`concerns over the disclosure of proprietary and trade secret information.
`
`Notably, the Motion to Consolidate only discusses the actions as they concern Hain. See,
`
`e.g., Dkt. No. 19 at p. 3. Specifically, the Stewart Plaintiffs discuss that all of the actions concern
`
`whether Hain is liable to consumers for alleged misrepresentations and omissions regarding Hain’s
`
`baby food products. Id. There is no discussion of commonality of claims against other defendants.
`
`For these reasons, consolidation of claims against Nurture is not appropriate. At the proper
`
`time, Nurture will seek to sever claims against it from those against any other defendant. Jem
`
`Accessories, Inc. v. JVCKENWOOD USA Corp., 2021 WL 706646, at *4 (S.D.N.Y. Feb. 22, 2021)
`
`(court may sever claims based on: (1) judicial economy; (2) prejudice to the parties; and (3)
`
`whether the claims involve different witnesses and evidence).
`
`
`
`-3-
`
`
`
`Case 2:21-cv-00678-JS-AYS Document 37 Filed 03/15/21 Page 4 of 5 PageID #: 158
`
`
`
`IV. CONCLUSION
`
`Based on the foregoing, Nurture respectfully requests that the Stewart Plaintiffs’ Motion
`
`to Consolidate be denied with respect to any claims against Nurture.
`
`
`
`
`
`
`
`
`Dated: March 15, 2021
`
`DLA PIPER LLP (US)
`
`By: /s/ Negin Hadaghian
`Negin Hadaghian
`1251 Avenue of the Americas, 27th Floor
`New York, NY 10020-1104
`Telephone: 212.335.4500
`Facsimile: 212.335.4501
`Email: negin.hadaghian@us.dlapiper.com
`
`Angela C Agrusa (pro hac vice pending)
`2000 Avenue of the Stars
`Suite 400 North Tower
`Los Angeles, California 90067-4704
`Telephone: 310.595.3000
`Facsimile: 310.595.3300
`Email:
`angela.agrusa@us.dlapiper.com
`
`Appearing Specially on behalf of Non-Party
`Nurture, Inc.
`
`
`
`-4-
`
`
`
`Case 2:21-cv-00678-JS-AYS Document 37 Filed 03/15/21 Page 5 of 5 PageID #: 159
`
`
`
`CERTIFICATE OF SERVICE
`
`I HEREBY CERTIFY that on March 15, 2021, the foregoing document was filed
`
`electronically using CM/ECF and is being served this day on all counsel of record via transmission
`
`of Notice of Electronic Filing generated by CM/ECF.
`
`
`
`Dated: March 15, 2021
`
`
`
`
`
`/s/ Negin Hadaghian
` Negin Hadaghian
`
`
`
`-5-
`
`