In our last edition, we noted that the Panel recently created three new MDL proceedings involving the marketing of food products. Reversing this trend, in ruling on motions from the July hearing to create two new food industry MDL proceedings arising from "All Natural" marketing campaigns, the Panel held that MDLs were unwarranted.
In re Kashi Company Marketing and Sales Practices (MDL No. 2456) (use of "cane juice" in "100% Natural" cereals, among other products); In re Capatriti Brand Oilve Oil Marketing and Sales Practices (MDL No. 2469) (use of "olive-pomace" in "100% Pure Olive Oil").
Practitioners before the Panel should note that the bases for denying or granting MDL motions are not unique to an industry or set of cases. Rather, as readers of this column are aware, patterns regarding the denial and grant of MDL motions cut across industry lines and have certain common characteristics. Specifically, in the two sets of food cases that were before the Panel, the following factors militated against creation of an MDL proceeding:
- A relatively small number of actions (two or four cases)
- Only a few federal districts (in the Capatriti cases, they were in "adjacent districts")
- Few plaintiffs’ counsel
- With respect to the Capatriti cases, one action was more significantly advanced than the others (with discovery nearing completion)
- With respect to the Kashi cases, the Panel was "unconvinced...that [the] issues are sufficiently complex or numerous to warrant the creation of an MDL."2
This is in contrast to the three food industry MDL motions from the May hearing session that were granted. In those cases, there were between six to nine actions, pending in five to eight "geographically dispersed" judicial districts strewn about the country (from East to West and in between). In ruling on those motions, the Panel explained that any overlap among plaintiffs’ counsel was "minimal," making informal coordination unlikely and difficult.3
"Practitioners before the Panel should note that the bases for denying or granting MDL motions are not unique to an industry or set of cases."
This article originally appeared in Law360 on September 24, 2013.