STIPULATION AND ORDER TO STAY CASE PENDING THE NINTH CIRCUIT'S RESOLUTION OF BRAZIL V. DOLE FOOD COMPANY, INC., JONES V. CONAGRA FOODS, INC., AND KOSTA V. DEL MONTE FOODS, INC.

WILLIAM H. ORRICK, District Judge.

Plaintiff Ana Belen Ham ("Plaintiff") and defendant The Hain Celestial Group, Inc. ("Defendant") hereby agree and stipulate as follows:

WHEREAS this lawsuit challenges allegedly false and deceptive mislabeling of food products manufactured by Defendant;

WHEREAS the parties expect that anticipated decisions made by the Ninth Circuit in the appeals in Brazil v. Dole Food Company, Inc., No. 14-17480 (9th Cir. Filed December 17, 2014), Jones v. ConAgra Foods, Inc., No. 14-16327 (9th Cir. Filed July 14, 2014), and Kosta v. Del Monte Foods, Inc., No. 15-16974 (9th Cir. Filed October 2, 2015) will provide useful guidance on threshold issues in this case relating to ascertainability, predominance, and monetary relief;

WHEREAS other courts in this district have stayed similar food labeling cases because the litigants expect that the aforementioned anticipated decisions made by the Ninth Circuit will provide useful guidance on threshold issues of ascertainability, predominance, and monetary relief. See Pardini v. Unilever United States, Inc., No. 13-cv-01675-SC, 2015 U.S. Dist. LEXIS 49752, at *6 (N.D. Cal. Apr. 15, 2015); Wilson v. Frito-Lay North Am., Inc., No. 12-CV-1586 S.C. 2015 U.S. Dist. LEXIS 94179, at *5 (N.D. Cal. July 20, 2015); Leonhart v. Nature's Path Foods, Inc., No. 13-cv-00492-BLF, 2015 U.S. Dist. LEXIS 73269, *9 (N.D. Cal. June 5, 2015); Order Staying Case, Parker v. J.M. Smucker Co., No. 13-0690 SC, Dkt. No 74 (N.D. Cal. December 18, 2004); Gustavson v. Mars, Inc., No. 13-CV-04537-LHK, 2014 U.S. Dist. LEXIS 171736 (N.D. Cal. Dec. 10, 2014); Stipulation And Order Staying Case, Swearingen v. ConAgra Foods, Inc., No. C13-05322, Dkt. No. 36 (N.D. Cal. Jan. 9, 2015); and Order By Judge Haywood S. Gilliam, Jr. Staying Case, Allen v. ConAgra Foods, Inc., 3:13-CV-01279-VC, Dkt. No. 152 (N.D. Cal. 2013);

WHEREAS the Brazil appeal raises issues pertinent to Plaintiff's motion for class certification: While Judge Koh initially certified a damages and injunctive class of consumers who purchased Dole food products bearing the allegedly false label "All Natural Fruit," she later decertified the class because she found the plaintiff's regression analysis to be insufficient. Brazil v. Dole Packaged Foods, LLC, No. 12-CV-01831-LHK, 2014 U.S. Dist. LEXIS 74234, at *68-71 71 (N.D. Cal. May 30, 2014); Brazil v. Dole Packaged Foods, LLC, No. 12-CV-01831-LHK, 2014 U.S. Dist. LEXIS 157575, at *45 (N.D. Cal. Nov. 6, 2014) (decertifying damages class). At issue on appeal in Brazil is whether the only possible model of restitution or disgorgement is the difference-in-value method adopted by this Court;

WHEREAS the Jones appeal raises three additional relevant issues: (1) imposition and analysis of the ascertainability requirement; (2) analysis of the predominance requirement; and (3) determination of an acceptable restitution/damages theory. See Brief of Appellant at 2, Jones v. ConAgra Foods, Inc., No. 14-16327 (9th Cir. Nov. 21, 2014). "Those very same issues are almost certain to be raised in this case, and they are likely to be dispositive on a motion for class certification." Pardini, 2015 U.S. Dist. LEXIS 49752, at *6;

WHEREAS the Del Monte appeal involves, inter alia, the issues of ascertainability and materiality, both of which Plaintiff anticipates Defendant will raise as issues in this case. WHEREAS the Court has the inherent power to stay proceedings. Pardini, 2015 U.S. Dist. LEXIS 49752, at *2 (quoting Landis v. Am. Co., 299 U.S. 248, 254 (1936)). In deciding whether to stay proceedings, the Court considers "the possible damage which may result from granting a stay, the hardship or inequity which a party may suffer in being required to go forward, and the orderly course of justice measured in terms of the simplifying or complicating of issues, proof, and questions of law which could be expected to result from a stay.'" Id. at *2-3 (quoting CMAX, Inc. v. Hall, 300 F.2d 265, 268 (9th Cir. 1962)). In cases where substantial litigation is likely to take place during the pendency of an appeal, courts have granted a stay as a means of conserving judicial resources. See Canal Props. LLC v. Alliant Tax Credit V, Inc., No. C04-03201 SI, 2005 U.S. Dist. LEXIS 49366, at *9 (N.D. Cal. June 29, 2005) (granting stay where case on appeal was likely to have preclusive effect, and where substantial litigation would likely take place during the pendency of the appeal);

WHEREAS a stay here will promote the orderly course of justice through the simplification of the legal questions of how the requirements for ascertainability, materiality, and predominance apply in consumer class actions, as well as what the appropriate damages theories might be;

WHEREAS staying this case will also conserve the parties' resources and enable a more efficient and less expensive resolution of Plaintiff's claims. If this case were to go forward, the parties would expend significant time and resources in discovery and at the class certification stage and beyond. They would also expend considerable resources arguing the class certification motion, and possibly appealing any ruling on class certification to the Ninth Circuit. But the Ninth Circuit may clarify the applicable law and the requirements for the factual record that needs to be developed at this stage. Just as the parties urged in Leonhart, absent a stay the parties here would likely be forced to re-depose key witnesses, and re-brief class certification after a decision in Brazil, et al.

NOW, THEREFORE, IT IS HEREBY STIPULATED AND AGREED that the instant action should be stayed pending resolution of the appeals in Brazil v. Dole Food Company, Inc., No. 14-17480 (9th Cir. Filed December 17, 2014), Jones v. ConAgra Foods, Inc., No. 14-16327 (9th Cir. Filed July 14, 2014), and Kosta v. Del Monte Foods, Inc., No. 15-16974 (9th Cir. Filed October 2, 2015).

ORDER

IT IS HEREBY ORDERED THAT, pursuant to the foregoing stipulation of the parties and in light of the pending appeals in Ninth Circuit Court of Appeals in Brazil v. Dole Food Company, Inc., No. 14-17480 (9th Cir. Filed December 17, 2014), Jones v. ConAgra Foods, Inc., No. 14-16327 (9th Cir. Filed July 14, 2014), and Kosta v. Del Monte Foods, Inc., No. 15-16974 (9th Cir. Filed October 2, 2015), the Court STAYS this action. Six months from today's date, and every six months thereafter while this stay is in effect, the parties shall file a short Joint Status Report describing any pertinent developments in the cases identified above.

IT IS SO ORDERED.