JPML: One of These Things Is Not Like the Other
Every so often, the Judicial Panel on Multidistrict Litigation issues an opinion that leaves me scratching my head and saying "huh?". The JPML issued one such opinion just a few weeks ago. I thought it might be interesting to compare and contrast this opinion with another JPML opinion from the same hearing date. Let's start with the typical one.
In In re: Dial Complete Marketing and Sales Practices Litigation, MDL No. 2263, Transfer Order (J.P.M.L. Aug. 18, 2011), the court was faced with a series of ten putative class actions pending in seven judicial districts. (All assert statewide classes, and two also purport to represent nationwide classes.) As is demonstrated by an exemplar complaint, the cases assert that Dial Complete Soap is deceptively marketed as capable of killing 99.9% of bacteria without having adequate scientific research to back the claim, and without disclosing that many bacteria have become resistant to the active ingredient in the soap.
The JPML decided to consolidate the cases in a new MDL to be venued in New Hampshire, holding that "these ten actions involve common questions of fact, and that centralization under Section 1407 . . . will serve the convenience of the parties and witnesses and promote the just and efficient conduct of this litigation." Transfer Order at 1.
Compare the Dial decision with In re: Nutella Marketing and Sales Practices Litigation, MDL No. 2248, Order Denying Transfer (J.P.M.L. Aug. 16, 2011). In Nutella, the panel was faced with three putative national class actions in two judicial districts. The cases assert that Nutella hazelnut spread is deceptively marketed as a nutritious part of a healthy breakfast without adequately disclosing that the spread is made from saturated fats and large amounts of processed sugar, allegedly leading to heart disease, obesity, and diabetes. All of the plaintiffs and the defendant supported consolidation, although they disagreed on where the MDL should be located.
The JPML denied the motion, stating:
Here, the Panel is not persuaded that Section 1407 centralization is necessary for the convenience of the parties and witnesses or for the just and efficient conduct of this litigation at this time.
The actions may share some factual questions regarding the common defendant's marketing practices, but these questions do not appear complicated. Indeed, the parties have not convinced us that any common factual questions are sufficiently complex or numerous to justify Section 1407 transfer at this time. Cooperation among the parties and deference among the courts should minimize the possibility of duplicative discovery and inconsistent pretrial rulings.
Order Denying Transfer at 1.
Huh?
So what is so different about Nutella? Obviously, it involves 7 fewer actions; but the JPML has created MDLs for 3 nationwide putative class actions before. There were 12 plaintiffs' firms involved in Dial, but only 2 in Nutella, but surely that was not the sole reason for denying the MDL transfer that all parties requested.
I suspect that a large part of the JPML's motivation in denying an MDL transfer is the obviously frivolous nature of the Nutella lawsuits. Nutella, as a food product, lists its ingredients right on the label, and includes "Nutrition Facts" that disclose the calories and amounts of saturated and trans fats contained in a serving of the product. You don't need to conduct discovery or create an MDL to know that a claim based on the failure to disclose facts that are right on the label of the product shouldn't survive a motion to dismiss -- regardless of whether New Jersey or California law applies.
Now that the cases will go back to federal courts in New Jersey and California, it will be interesting to monitor the Nutella cases to see how they fare in pleadings challenges.
