General Mills is facing four class action suits filed against it in the district courts of California, Florida, New Jersey and Ohio. On June 8, 2010, the Judicial Panel on Multidistrict Litigation denied General Mills’ motion to centralize the litigation. In re General Mills, Inc. Yoplus Yogurt Products Marketing and Sales Practice Litigation, MDL No. 2169, __ F.Supp.2d __ (JPML Jun 8, 2010). Centralization of civil actions pending in different jurisdictions is appropriate pursuant to 28 U.S.C. § 1407 where (1) the cases to be transferred involve common questions of fact, (2) transfer will promote judicial efficiency and, less importantly (3) will promote convenience for the parties and witnesses. Despite the facial appeal of centralization where, as here, the four actions share factual questions regarding General Mills’ nationwide marketing of its yogurt, General Mills was unable to persuade the Panel that centralization would promote judicial efficiency.
First, the Panel was not convinced that the common factual questions were sufficiently complex and/or numerous to justify Section 1407 transfer. While having at least one common question of fact is a threshold requirement for centralization, the number of cases proposed for transfer and the complexity of the common questions and the cases all factor into whether a transfer will promote judicial efficiency and the convenience of the parties. There is no magic number of cases necessary to invoke Section 1407, but the fact that the four pending cases did not involve sufficiently complex factual questions weighed against centralization.
Second, the Panel noted that the Florida suit already had been certified as a statewide class of all persons who purchased Yo-Plus yogurt in Florida to obtain its claimed digestive benefits. That certification ruling is on interlocutory appeal to the Eleventh Circuit. The other three suits seek similar putative statewide classes encompassing consumers from different states. Based on the foregoing, the Panel concluded that “the certified and putative classes will likely not overlap significantly.” Both a lack of overlapping plaintiffs and the advanced procedural posture of the Florida action tipped the scales against centralization.
Lastly, the Panel lined up the players. With plaintiffs represented by common counsel and General Mills a sole defendant, the Panel concluded that the parties have “every ability” to cooperate and minimize the possibilities of duplicative discovery and inconsistent pretrial rulings.
Absent Section 1407 centralization, such cooperation can include joint hearings and conferences pursuant to Fed. R. Civ. P. 77(b), the coordinated appointment of joint experts pursuant to FRE 706 or special masters under Fed. R. Civ. P. 53 to avoid duplicative activity and inconsistencies in pretrial disputes, cross-filing discovery demands to make the product of discovery usable in all cases and establishing joint depositories.
But even assuming robust cooperation, General Mills faces the specter of increased costs from individualized briefing schedules and discovery programs while plaintiffs’ counsel looks to increase its payday through increased attorneys fees.