The Judicial Panel on Multidistrict Litigation (JPML) has denied a motion to centralize, for pre-trial purposes, 10 lawsuits pending in five districts against Gerber Products Co. and Nestlé USA, Inc. alleging that the companies “misleadingly advertise and market infant formulas and cereals as promoting immunity, digestive health, and visual and cognitive function because they contain probiotic cultures” and other ingredients. In re Gerber Probiotic Prods. Mktg. & Sales Practices Litig., MDL No. 2397 (JPML, decided October 16, 2012).

According to the court, five of the 10 lawsuits are already consolidated in the District of New Jersey where Gerber is headquartered. One of these cases was filed in California, “thus one transferor court already has concluded that under Section 1404 the District of New Jersey is the proper venue for this litigation.” Because the defendants filed section 1404 change of venue motions in the remainder of the cases, and if all of the actions are ultimately transferred to New Jersey, the panel notes that this move “produces significant advantages” over multidistrict litigation proceedings. “It allows for the possibility of consolidation of actions for trial, which potentially avoids the increased costs associated with multiple trials after the Panel remands actions to the various transferor courts once pretrial proceedings are concluded.”

Stating that “where a reasonable prospect exists that resolution of Section 1404 motions could eliminate the multidistrict character of a litigation, transfer under Section 1404 is preferable to centralization,” the JPML denied the request to centralize the 10 actions before a multidistrict litigation court.