Filed: Apr. 08, 2016
Latest Update: Apr. 08, 2016
Summary: ORDER APPOINTING INTERIM CLASS COUNSEL EDWARD M. CHEN , District Judge . I. INTRODUCTION The instant putative class action is brought on behalf of purchasers of Safeway brand and Open Nature brand tuna (collectively Safeway Tuna). Docket No. 53 (Consolidated Complaint) (Compl.) at 1. Plaintiffs allege that the Safeway Tuna cans are underfilled and substantially underweight. Id. The suit was originally filed as three separate suits: Soto v. Safeway, Inc., Shihad v. Safeway, Inc.,
Summary: ORDER APPOINTING INTERIM CLASS COUNSEL EDWARD M. CHEN , District Judge . I. INTRODUCTION The instant putative class action is brought on behalf of purchasers of Safeway brand and Open Nature brand tuna (collectively Safeway Tuna). Docket No. 53 (Consolidated Complaint) (Compl.) at 1. Plaintiffs allege that the Safeway Tuna cans are underfilled and substantially underweight. Id. The suit was originally filed as three separate suits: Soto v. Safeway, Inc., Shihad v. Safeway, Inc., ..
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ORDER APPOINTING INTERIM CLASS COUNSEL
EDWARD M. CHEN, District Judge.
I. INTRODUCTION
The instant putative class action is brought on behalf of purchasers of Safeway brand and Open Nature brand tuna (collectively Safeway Tuna). Docket No. 53 (Consolidated Complaint) (Compl.) at ¶ 1. Plaintiffs allege that the Safeway Tuna cans are underfilled and substantially underweight. Id.
The suit was originally filed as three separate suits: Soto v. Safeway, Inc., Shihad v. Safeway, Inc., and Shiner v. Safeway, Inc. On March 8, 2016, the parties stipulated to the consolidation of the cases. Docket No. 39. Plaintiff Soto now moves for the appointment of Bursor & Fisher, P.A. as interim counsel, while Plaintiff Shiner moves for the appointment of Finkelstein Thompson LLP as interim counsel. Docket Nos. 19, 38. These motions came on for hearing before the Court on April 7, 2016. For the reasons stated below, the Court will appoint Finkelstein Thompson as interim counsel.
II. DISCUSSION
The Ninth Circuit has held that a court has the inherent power to consolidate actions and appoint counsel to supervise and coordinate prosecution of a case. See Vincent v. Hughes Air W., Inc., 557 F.2d 759, 774 (9th Cir. 1977). Factors that courts typically consider in lead counsel determinations include: (1) the quality of the pleadings, (2) the vigorousness of the prosecution of the lawsuits, (3) the capabilities of counsel, including their experience and prior success record, and whether counsel's charges are reasonable, and (4) whether one complaint is simply a `copycat action' of another. See In re Oclaro, Inc. Derivative Litig., Case No. C-11-3176 EMC, 2011 U.S. Dist. LEXIS 103967, at *6-7 (N.D. Cal. Sept. 14, 2011).
The Court finds that appointment of interim class counsel is warranted to avoid duplication of work, and appoints Finkelstein Thompson as interim counsel. First, the quality of pleadings somewhat favors Finkelstein Thompson, as the Shiner complaint identified the Vons corporation as a defendant while the Soto complaint did not, although Vons stores use a number of Safeway brands and advertising campaigns (including the Open Nature brand). See Case No. 16-cv-318-EMC, Docket No. 1 (Shiner Compl.). The original Soto complaint also did not identify the "Open Nature brand" (which is Safeway's own brand, and allegedly replaced the Safeway brand after it was discontinued). See id. at ¶ 31. While Bursor & Fisher state that they were aware of this information, they offer no explanation for why they failed to include it in their initial complaint. See Docket No. 35-1 (Supp. Fisher Dec.) at ¶ 3.
Second, the vigorousness of prosecution is neutral, given the early posture of this case. Both firms have conducted similar pre-trial investigations, including contacting the National Oceanic and Atmospheric Administration (NOAA) to conduct standard of fill tests. See Docket No. 19-1 (Fisher Dec.) at ¶¶ 12-13; Docket No. 38 (Rivas Dec.) at ¶ 13.
Third, the capabilities of counsel favors Finkelstein Thompson. While both counsel have experience in food labeling class actions, the Court has some concerns regarding Bursor & Fisher's actions in the Hendricks v. StarKist Co. class action, Case No. 13-cv-729-HSG, as well as Bursor & Fisher's assertions that they successfully resolved the Hendricks case even though final approval of the class action settlement was denied. Finkelstein Thompson, on the other hand, has been appointed to the Steering Committee in In re Volkswagen "Clean Diesel" MDL, Case No. 15-MD-2672-CRB (JSC), having been selected in a highly competitive process. Rivas Dec. at ¶ 11.
Finally, the factor of whether one complaint may be a "copycat action" favors Bursor & Fisher. Finkelstein Thompson did not start investigating the claim until early December 2015, after the Soto complaint was filed in November 2015, and the complaints are relatively similar. See Rivas Dec. at ¶ 13.
The weight of the factors favors Finkelstein Thompson as interim class counsel. As interim class counsel, Finkelstein Thompson shall have the sole authority to:
a. Determine and present (in briefs, oral argument, or such other fashion as may be appropriate, personally or by a designee) to the Court and opposing parties the positions of plaintiffs in the Consolidated Action on all matters arising during proceedings;
b. Coordinate and conduct discovery on behalf of plaintiffs in the Consolidated action consistent with the requirements of Fed. R. Civ. P. 26(b)(1), 26(b)(2) and 26(g), including any discovery and scheduling orders that the Court may issue, including the preparation of joint interrogatories and requests for production of documents and the examination of witnesses in depositions;
c. Coordinate the selection and preparation of expert witnesses for the plaintiffs in the Consolidated Action;
d. Conduct settlement negotiations on behalf of plaintiffs in the Consolidated Action;
e. Delegate specific tasks to other counsel as necessary to ensure that pretrial preparation for the plaintiffs in the Consolidated Action is conducted efficiently and effectively;
f. Enter into stipulations with opposing counsel as necessary for the conduct of the Consolidated Action;
g. Perform such other duties as may be incidental to proper coordination of Plaintiffs' activities or authorized by further order of the Court.
In making this appointment, the Court reiterates its view that this case should not require work by multiple law firms except in exceptional circumstances on discrete issues, where, e.g., another firm has unique knowledge on a particular matter, and that Finkelstein Thompson will be charged with ensuring that costs and expenses — including attorney's fees — will be properly managed, and that duplication of work will be kept to a minimum. There is no need for an executive committee or co-counsel.
III. CONCLUSION
The Court GRANTS Plaintiff Shiner's motion to appoint Finkelstein Thompson as sole interim counsel and DENIES Plaintiff Soto's motion to appoint Bursor & Fisher as interim counsel.
This order disposes of Docket Nos. 19 and 38.
IT IS SO ORDERED.
