Motion Consolidate Thurston v Unilever

7/28/2019 Motion Consolidate Thurston v Unilever

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CASE NOS.: 10-cv-04937-PJH

11-cv-01811-PJH

MOTION FORCONSOLIDATION,APPOINTMENT OF INTERIM

CO-LEAD COUNSEL AND LEAVE TO AMEND

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Michael D. Braun (167416)BRAUN LAW GROUP, P.C.10680 W. Pico Blvd., Suite 280Los Angeles, CA 90064Tel: (310) 836-6000Fax: (310) 836-6010

Joseph N. Kravec, Jr.(admittedpro hac vice)STEMBER FEINSTEIN DOYLE

PAYNE & KRAVEC, LLCAllegheny Building, 17th Floor429 Forbes AvenuePittsburgh, PA 15219Tel: (412) 281-8400Fax: (412) 281-1007

Janet Lindner Spielberg (221926)LAW OFFICES OF JANET LINDNER

SPIELBERG12400 Wilshire Boulevard, Suite 400Los Angeles, California 90025Tel: (310) 392-8801Fax: (310) 278-5938

James S. Notis (admittedpro hac vice)Jennifer Sarnelli (242510)GARDY & NOTIS, LLP

560 Sylvan AvenueEnglewood Cliffs, NJ 07632

Tel: (201) 567-7377Fax: (201) 567-7337

Attorneys for PlaintiffsCorriette and Waldron

Attorneys for PlaintiffsThurston and Denmon-Clark

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

CHANEE THURSTON and TANASHADENMON-CLARK on behalf of themselvesand all others similarly situated,

Plaintiffs

v.

CONOPCO, INC. d/b/a UNILEVER

(formerly d/b/a GOOD HUMOR-BREYERS)d/b/a BREYERS,

Defendant.

CASE NO.: 10-cv-04937-PJH

CLASS ACTION

PLAINTIFFS NOTICE OF MOTION ANDMEMORANDUM IN SUPPORT OF MOTIONFOR CONSOLIDATION PURSUANT TO FED.R. CIV. P. 42(a), APPOINTMENT OF INTERIMCO-LEAD COUNSEL PURSUANT TO FED. R.CIV. P. 23(g), AND LEAVE TO AMEND

Hearing Date: June 12, 2013Time: 9:00 a.m.Courtroom: 3 (Oakland Courthouse)

Case4:10-cv-04937-PJH Document99 Filed05/06/13 Page1 of 17


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ROSS CORRIETTE and JAMES WALDRONon behalf of themselves and all others similarlysituated,

Plaintiffs

v.

UNILEVER d/b/a BREYERS,

Defendant.

RELATED CASE

Case No. 11-cv-01811-PJH



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CASE NOS.: 10-cv-04937-PJH, iii

11-cv-01811-PJH



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TABLE OF CONTENTS

STATEMENT OF FACTS .................................................................................................................. 1A. Nature of the Action ............................................................................................... 1B. Procedural History ................................................................................................. 2

ARGUMENT ....................................................................................................................................... 4I. Consolidation of the Breyers Actions is Appropriate ..................................................... 4II. Plaintiffs Counsel Meet All Rule 23(g) Requirements for Appointment of .................. 5

A. The Work Plaintiffs Counsel Have Done in Identifying and InvestigatingPotential Claims in this Action ........................................................................ 5

B. Class Counsel have Significant Experience in Handling Class Actions,Other Complex Litigation, and the Types of Claims Asserted in this Action . 6

C. Plaintiffs Counsel Have Proven Knowledge of the Applicable Law and

Experience in this Type of Litigation .............................................................. 8D. Proposed Interim Co-Lead Class Counsel Have and Will Dedicate the

Resources Necessary to Represent the Class ................................................... 9III. The Court Should Grant Plaintiffs Leave to Amend .................................................... 10

CONCLUSION .................................................................................................................................. 11



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TABLE OF AUTHORITIES

CASES PAGECooper Dev. Co. v. Emprs Ins. of Wausau ,

765 F. Supp. 1429 (N.D. Cal. 1991) ................................................................................................. 10

DCD Programs, Ltd. v. Leighton,833 F.2d 183 (9th Cir. 1987) ............................................................................................................ 10

Dennis v. Kellogg Co.,697 F.3d 858 (9th Cir. Cal. 2012) .................................................................................................. 3, 6

Eminence Capital, LLC v. Aspeon, Inc.,316 F.3d 1048 (9th Cir. 2003) .......................................................................................................... 10

Ferguson v. Corinthian Coll. Inc.,No. 11-127, 2011 WL 1519352 (C.D. Cal. Apr. 15, 2011) ................................................................ 4

Foman v. Davis,371 U.S. 178 (1962) ......................................................................................................................... 10

Hawecker v. Sorensen,No. 10-85, 2011 WL 1560809 (E.D. Cal. Apr. 22, 2011) .................................................................. 5

Heune v. UnitedStates,743 F.2d 703 (9th Cir. 1984) .............................................................................................................. 5

In re Adams Apple, Inc.,829 F.2d 1484 (9

thCir. 1987) ............................................................................................................. 4

Investors Research Co. v. U.S. Dist. Court for Cent. Dist. Of Cal.,

877 F.2d 777 (9th Cir. 1989) .............................................................................................................. 4

JSR Micro, Inc. v. QBE Ins. Corp.,No. C 09-3044 PJH, 2010 WL 5211504 (N.D. Cal. Dec. 16, 2010) ................................................ 11

Kaminske v. JP Morgan Chase Bank N.A.,No. 09-00918 JVS(RNBx), 2011 WL 521338 (C.D. Cal. Jan 3, 2011) ............................................. 5

Mohanty v. BigBand Networks, Inc.,No. C 07-5101 SBA, 2008 WL 426250 (N.D. Cal. Feb. 14, 2008) ................................................... 4

Schueneman v. Arena Pharms., Inc.,No. 10-1959 BTM (BLM), 2011 WL 3475380 (S.D. Cal. Aug. 8, 2011) ......................................... 4

Zeisel v. Diamond Foods, Inc.,No. C 1001192 JSW, 2012 WL 4902970 (N.D. Cal. Oct. 16, 2012) ............................................... 9

Zeisel v. Diamond Foods, Inc.,No. C 10-01192 JSW, 2011 WL 2221113 (N.D. Cal. June 7, 2011) ............................................. 8, 9



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CASE NOS.: 10-cv-04937-PJH, iv

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RULES

Fed. R. Civ. P. 23(g) ............................................................................................................................. 5, 8

Fed. R. Civ. P. 23(g)(1)(A) ...................................................................................................................... 5

Fed. R. Civ. P. 23(g)(1)(B) ....................................................................................................................... 5

Rule 23(g)(1)(A)(iv) ............................................................................................................................... 10

Fed. R. Civ. P. 15(a)(2) .......................................................................................................................... 10

Fed. R. Civ. P. 23 (2003 Advisory Committees Notes) .......................................................................... 5

Fed. R. Civ. P. 42(a) ................................................................................................................................. 4



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CASE NOS.: 10-cv-04937-PJH,

11-cv-01811-PJH

1 MOTION FORCONSOLIDATION,APPOINTMENT OF INTERIM


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TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:

PLEASE TAKE NOTICE that on June 12, 2013 at 9:00 a.m., or as soon thereafter as counsel

may be heard before the Honorable Judge Phyllis J. Hamilton, United States District Court Judge for

the Northern District of California, 1301 Clay Street, Courtroom 3, Oakland, CA 94612, Plaintiffs

Chanee Thurston, Tanasha Denmon-Clark, Ross Corriette, and James Waldron (Plaintiffs) will and

hereby do move this Court pursuant to Fed. R. Civ. P. 42(a) and 23(g) for entry of an Order

consolidating the above-captioned, related actions, Thurston et al v. Conopco, Inc., Case No. 10-04937-

PJH (the Thurston Action), andCorriette, et al. v. Unilever, Case No. 11-1811-PJH (the Corriette

Action) (collectively, the Breyers Actions). Should the Court grant consolidation of these actions

Plaintiffs also seek to appoint Gardy & Notis, LLP; Stember Feinstein Doyle, Payne & Kravec, LLC;

the Law Offices of Janet Lindner Spielberg; and the Braun Law Group, P.C. as Interim Co-Lead Class

Counsel for the consolidation action. Finally, Plaintiffs seek leave to amend a Consolidated Amended

Complaint. This Motion is based on the points and authorities herein, the Declaration of Janet

Speilberg, and Exhibits thereto, the papers and pleadings on file in this matter and any argument made

by counsel at the hearing. Concurrently submitted with this Motion is a [Proposed] Order.

Plaintiffs seek to consolidate the Breyers Actions pursuant to Fed. R. Civ. P. 42(a) in the

interests of efficiency. Should the Court consolidate the actions, Plaintiffs seek to have their chosen

counsel, Gardy & Notis, LLP; Stember Feinstein Doyle, Payne & Kravec, LLC; the Law Offices of

Janet Lindner Spielberg; and the Braun Law Group, P.C., (Plaintiffs Counsel), appointed as Interim

Co-Lead Class Counsel pursuant to Fed. R. Civ. P. 23(g). Plaintiffs also seek leave to file a

Consolidated Amended Complaint

STATEMENT OF FACTS

A. Nature of the ActionOn November 1, 2010, Plaintiffs Thurston and Denmon-Clark filed a complaint for damages,

equitable, declaratory and injunctive relief against Defendant Unilever in the Northern District of

California asserting common law fraud, consumer fraud and unjust enrichment claims on behalf of a

putative nationwide class and a California sub-class of consumers who purchased Breyers All Natural



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original ice creams, yogurts and sorbets or Breyers Smooth & Dreamy Fat All Natural ice creams,

yogurts and sorbets containing alkalized cocoa. Thurston Doc. No. 1.

On November 4, 2010, Plaintiffs Corriette and Waldron (along with a third Plaintiff who has

since withdrawn), filed a similar class action complaint against Defendant Unilever in the District of

New Jersey. See Corriette, Doc. 1. The Corriette Action asserted claims for consumer fraud, breach of

express and implied warranties, and unjust enrichment on behalf of a nationwide class and a New

Jersey sub-class of consumers who purchased Breyers All Natural Original Ice Cream and Breyers

Smooth & Dreamy Fat All Natural Ice Cream containing alkalized cocoa, and alleged that these Ice

Cream Products were not All Natural because they contained alkalized cocoa. Id. at 1-2, 6. The

Corriette Action was ultimately transferred to this Court and the Thurston andCorriette Actions were

related. Thurston, Doc. No. 52; Corriette Doc No. 27.

B. Procedural HistoryOn December 6, 2010, Defendants filed a motion to dismiss and motion to strike in the Thurston

Action. Thurston Doc. No. 17. Defendants briefed an exhaustive array of arguments including federal

preemption, abstention, and a Fed. R. Civ. P. 9(b) challenge. In response to Defendants motions,

Plaintiffs Thurston and Denmon-Clark filed Amended Complaints. Thurston, Doc. No. 21. On

December 20, 2010, Defendants renewed their motions to dismiss and strike. Plaintiffs opposed. See

Thurston, Docs. 34, 35.

Thereafter, on December 22, 2010, Unilever also filed a motion to dismiss the Corriette Action,

which was then pending in the District of New Jersey. Corriette Doc. No. 13. The Corriette Plaintiffs

similarly opposed Unilevers motion to dismiss. Id. at Doc. No. 15. On March 28, 2011, the Honorable

William H. Walls, U.S.D.J., transferred the Corriette Action to the Northern District of California,

where the Thurston Action was pending. Id. at Doc. 18, 19, 20. Judge Walls further ruled that if the

motion to dismiss that was pending in the Thurston Action was granted, the Corriette Plaintiffs could

return to the District of New Jersey to litigate their claims. Id. at Doc. 18, 19.

On May 26, 2011, this Court entered an Order denying Defendants motions to dismiss and to

strike in the Thurston Action in their entirety. See Thurston, Doc. 56. Subsequent to the Courts May



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26, 2011 Order, the parties engaged in settlement discussions. After a series of preliminary discussions

regarding the parameters of a possible settlement, the parties agreed to mediate these matters on

September 14, 2011, before David A. Rotman, Esq., of Gregorio, Haldeman, & Rotman. See Plaintiffs

Memorandum in Support of Unopposed Motion for Preliminary Approval at 7, Thurston, Doc. 56.

During that mediation the parties were able to reach agreement on certain key terms of the Settlements,

and agreed to continue negotiating remaining terms thereafter. Id. After approximately five weeks of

continued negotiations involving the mediator, the parties reached agreements in principle. Id. Prior to

seeking Preliminary Approval, Plaintiffs sought discovery regarding Defendants profits and sales,

certain merits and class certification issues, and took two Fed.R.Civ.P. 30(b)(6) depositions to further

ensure that the terms of the Settlements were fair, reasonable and adequate. Id.

On March 30, 2012, the Court granted preliminary approval of the Settlements. Thurston Doc.

No. 47; Corriette Doc. No. 51. The Court conditionally certified the Settlement Class pursuant to

Federal Rule of Civil Procedure 23(a) and (b)(3), appointing the Law Offices of Janet Lindner

Spielberg, the Braun Law Group, P.C., Stember Feinstein Doyle, Payne & Kravec, LLC, and Gardy &

Notis, LLP as Co-Lead Counsel for the Class in the Breyers Actions. Id.

Due to the Ninth Circuits recent decision in Dennis v. Kellogg Company, No. 11-55674 (9th

Cir. Sept. 4, 2012), final approval of the parties Settlement was denied. To effectively and efficiently

continue litigating the Breyers Actions, Plaintiffs now ask that the Court consolidate the cases for

purposes of litigation, then appoint Gardy & Notis, LLP; Stember Feinstein Doyle, Payne & Kravec,

LLC; the Law Offices of Janet Lindner Spielberg; and the Braun Law Group, P.C., as Interim Co-Lead

Counsel for the class and provide leave to file a Consolidated Amended Complaint attached as Exhibit

A to the Declaration of Janet Lindner Speilberg (Speilberg Decl.).1

1The Court held a case management conference on January 31, 2013. Thurston Doc. No. 96;

Corriette Doc. No. 73. During this conference the Court instructed Counsel that they should attach aproposed Consolidated Amended Complaint to the Motion to Consolidate. See Speilberg Decl. at 3.Following the conference Plaintiffs Counsel drafted a proposed Consolidated Amended Complaint andsought consent from counsel for Defendant to file. See Speilberg Decl. at 4, Ex. B. Counsel forDefendant was unwilling to consent to filing the Consolidated Amended Complaint because Plaintiffschose to include a breach of warranty claim (which was previously alleged in the Corriette complaint).Id. Thus, Plaintiffs seek leave to file the proposed Consolidated Amended Complaint.



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ARGUMENT

I. Consolidation of the Breyers Actions is AppropriateIf actions before the court involve a common question of law or fact, the court may: (1) join

for hearing or trial any or all matters at issue in the actions; (2) consolidate the actions; or (3) issue any

other orders to avoid unnecessary cost or delay. Fed. R. Civ. P. 42(a). The district court has broad

discretion under Rule 42 to consolidate cases pending in the same district. Investors Research Co. v.

U.S. Dist. Court for Cent. Dist. Of Cal., 877 F.2d 777, 777 (9th Cir. 1989); see also In re Adams

Apple, Inc., 829 F.2d 1484, 1487 (9th Cir. 1987) (sua sponte consolidation of cases involving common

issues of law and fact is within the courts broad discretion). The purpose of consolidation is to

avoid the unnecessary costs or delays that would ensue from proceeding separately with claims or

issues sharing common aspects of law or fact. Mohanty v. BigBand Networks, Inc., No. 07-5101

SBA, 2008 WL 426250, at *2 (N.D. Cal. Feb. 14, 2008)(internal citations omitted). Class action suits

in particular are ideally suited to consolidation because their unification expedites proceedings,

reduces duplication, and minimizes the expenditure of time and money by all concerned. See

Schueneman v. Arena Pharms., Inc.,No. 10-1959, 2011 WL 3475380, at *1 (S.D. Cal. Aug. 8, 2011);

see also Ferguson v. Corinthian Coll. Inc., No. 11-127, 2011 WL 1519352, at *2 (C.D. Cal. Apr. 15,

2011) (finding the interest of judicial and party convenience rendered consolidation appropriate

because the actions involved common questions of law and fact, as well as similar defendants and

class definitions). Among other things, [c]onsolidation facilitates discovery, conserves judicial

resources, and reduces the confusion and delay that result from prosecuting related class action cases

separately. Mohanty, 2008 WL 426250, at *3.

Here, the related cases involve common questions of fact and law. They also involve the same

defendant, and have similar class definitions. As a result, the saving of time and effort consolidation

would produce will clearly outweigh any inconvenience, delay or expense that it would cause,

rendering consolidation appropriate here. See Heune v. United States, 743 F.2d 703, 704 (9th Cir.

1984); see also Hawecker v. Sorensen,No. 10-85, 2011 WL 1560809, at *2 (E.D. Cal. Apr. 22, 2011)

(concluding consolidation would save time, effort, and duplication given the likelihood of



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substantial overlap of witnesses). Accordingly, Plaintiffs respectfully request that the Court

consolidate the Breyers Actions, allowing them to proceed under a single case number.

II. Plaintiffs Counsel Meet All Rule 23(g) Requirements for Appointment of

Interim Co-Lead Counsel

Should the Court grant Plaintiffs request to consolidate the Breyers Actions, Plaintiffs seek to

have their chosen counsel appointed as Interim Co-Lead Counsel for the consolidated action. Rule

23(g)(3) provides that [t]he court may designate interim counsel to act on behalf of a putative class

before determining whether to certify the action as a class action. Fed. R. Civ. P. 23(g). In appointing

interim class counsel, Rule 23(g) further provides that a court must consider:

(i) The work counsel has done in identifying or investigating potential claims in the action;(ii) Counsels experience in handling class actions, other complex litigation, and the types of

claims asserted in the action;

(iii) Counsels knowledge of the applicable law; and(iv) The resources that counsel will commit to representing the class.

Fed. R. Civ. P. 23(g)(1)(A); see also Kaminske v. JP Morgan Chase Bank N.A., No. 09-00918

JVS(RNBx), 2011 WL 521338, at *2 (C.D. Cal. Jan 3, 2011). In addition, courts may also consider

any other matter pertinent to counsels ability to fairly and adequately represent the interests of the

class. Fed. R. Civ. P. 23(g)(1)(B).

The Advisory Committee Notes on Rule 23(g) provide further context for application of the

rule: Subdivision (g)responds to the reality that the selection and activity of class counsel are often

critically important to successful handling of a class action. This subdivision recognizes the

importance of class counsel, states the obligation to represent the interest of the class, and provides a

framework for selection of class counsel. Fed. R. Civ. P. 23 (2003 Advisory Committees Notes).

As set forth below, Plaintiffs Counsel satisfy all of the foregoing criteria under Rule 23(g) and

are best able to represent the interests of the class in the consolidated action.

A. The Work Plaintiffs Counsel Have Done in Identifying and InvestigatingPotential Claims in this Action

Plaintiffs counsel have done substantial work in identifying and investigating potential claims



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in the Breyers Actions. After receiving consumer complaints indicating that some flavors of Breyers

Ice Cream were not All Natural, Plaintiffs Counsel began their initial investigation. Specifically,

Plaintiffs Counsel began a lengthy and detailed factual investigation into the ingredients in Breyers Ice

Cream; the specific flavors that contained alkalized cocoa, and Defendants advertising efforts. In

addition to reviewing the facts, Plaintiffs Counsel spent a substantial amount of time and effort

investigating the law, including FDA regulations and warning letters, and crafting legal claims for relief

for consumers that purchased Breyers Ice Cream that was wrongly labeled All Natural. Upon

completing their investigation, Plaintiffs Counsel filed the initial complaint in the Thurston Action on

November 1, 2010 in the Northern District of California. Three days later, the Corriette Action was

filed in the District of New Jersey.

After motions to dismiss were briefed in both the Corriette andThurston Actions, the Corriette

Action was transferred to the Northern District of California. Each of Defendants motions to dismiss

having been denied, the attorneys in both cases decided to coordinate their efforts in the interests of

economy and efficiency, with a unified goal of properly and professionally advancing the litigation.

Through their concerted efforts a settlement was reached; confirmatory discovery was conducted; and

preliminary approval of that settlement was granted. The intervening decision in Dennis v. Kellogg

Co., 697 F.3d 858 (9th Cir. Cal. 2012) forced this Courts denial of final approval of that settlement,

however, Plaintiffs Counsel stand ready to continue to investigate and prosecute the Breyers Actions,

and request appointment of Interim Co-Lead Counsel to help facilitate that goal.

B. Class Counsel have Significant Experience in Handling Class Actions, OtherComplex Litigation, and the Types of Claims Asserted in this Action

Plaintiffs Counsel bring a wealth of relevant experience in prosecuting class actions. See

Speilberg Decl.atExhibits C-F. For example, the attorneys at Gardy & Notis have premier experience

litigating some of the largest class action cases, with an emphasis on securities, consumer, and

corporate governance cases. Seee.g.In re UnitedHealth Group Inc. Der. Litig., Case No. 27-CV-06-

8085 (MN. Dist. Ct. Hennepin County) ($930 million settlement);In re BankAmerica Corp. Sec. Litig.

MDL No. 1264 (E.D. Mo.) ($490 million recovery);In re Adelphia Communications Corp. Sec. & Der.

Litig., MDL No. 1529 (S.D.N.Y.) ($455 million recovery); In re Apple iPhone 4 Products Liability



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Litigation, MDL No. 10-2188 (N.D. Cal. Aug. 10, 2012) (free bumper ($29) and cash ($15) available to

all 21 million class members); see also Speilberg Decl. at Ex. C.

Joseph N. Kravec, Jr., the lead partner from Stember in this case, has twenty years experience

primarily litigating consumer class action cases, and has played integral roles as co-lead counsel in

class actions recovering billions of dollars for millions of consumers. See Speilberg Decl. at Ex. D.

Mr. Kravec was recently co-lead counsel in a consumer litigation that certified a California class of

450,000 policyholders under Californias UCL, and achieved a class-wide settlement valued at $86

million. Wahl v. American Security Insurance Company, Case No. 08-cv-00555 RS (N.D. Cal. filed

January 25, 2008). Mr. Kravec has been co-lead counsel in numerous other class actions throughout the

United States in his twenty years of practice, including consumer and multi-district class actions

involving millions of class members. One federal district judge recognized that, Joseph N. Kravec,

Jr. [has] significant experience litigating class actions and [has] been found adequate by other

courts, and [has] provided diligent and competent representation in the above-captioned case during

the proceedings. Zeno v. Ford Motor Co., Inc., 238 F.R.D. 173, 188 (W.D. Pa.2006)(citing Varacallo

v. Mass. Mut. Life Ins. Co., 226 F.R.D. 207, 233 (D.N.J. 2005); In re Metro. Life Ins. Co. Sales

Practices Litig., No. MDL 1091, 1999 WL 33957871, at *21 (W.D. Pa. Dec. 28, 1999). Mr. Kravec

was recently appointed co-lead class counsel in Astiana v. Kashi Corp, Case No. 1-cv-01967-H-BGS

(S.D. Cal.) Dkt. No. 41 and co-lead counsel in Spears. v. First American EappraiseIT, Case No. 5-08-

cv-00868 (RMW) (N.D. Cal.) (August 1, 2012).

Ms. Spielberg graduated law school in 2002 after a successful career as a Clinical Psychologist.

See Speilberg Decl. at Ex. E. Ms. Spielberg has dedicated her legal career to the prosecution of class

actions and has practiced extensively in the area of consumer litigation. Id. She has obtained millions

of dollars on behalf of the classes she represented and has often been complemented on her work.

Judge Peter D. Lichtman (Ret.), a Los Angeles Superior Court Judge well-known for his skills as a

mediator in complex cases, stated my compliment to plaintiffs counsel who were virtually

unwavering in their approach toward the case in wanting to see a successful resolution Outten v.

Career Education Corporation, et al., Case No. BC 318199 (Cal. Sup. Ct, January 10, 2008). Ms.



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Spielberg was recently appointed co-lead class counsel in Spears v. First American EappraiseIT, Case

No. 5-08-cv-00868 (RMW) (N.D. Cal.) (August 1, 2012).

Mr. Braun was admitted to the California Bar in 1993 and is a member of the Bars of the

District of Columbia, New York, England and Whales. See Speilberg Decl. at Ex. F. Since graduating,

Mr. Braun has dedicated his entire legal career to prosecuting complex and class action litigation on

behalf of consumers and shareholders. Id. Over the course of the past twenty years, Mr. Braun has

served as lead or liaison counsel in well over a hundred cases and has been recognized as a Super

Lawyer every year since 2005. Id. He was also named a Lawyer of the Year (Clay Award) in 2000

by California Lawyer Magazine for his work on Small v. Fritz Co., 30 Cal. 4th 167 (April 7, 2003).

As made abundantly clear by the preceding examples, Plaintiffs Counsel have ample

experience handling complex, nationwide class litigation, including consumer class actions, and offer

all the hallmarks of adequate lead counsel under Fed. R. Civ. P. 23(g). See Berndt v. Cal. Dept. of

Corr., No. C03-3174 VRW, 2010 WL 5209384, at *1 (N.D. Cal. Dec. 16, 2010) (finding the

requirements of Rule 23(g)(1)(A)(2) met where counsel have multiple appearances before this Court

and others [and] have experience in handling class actions and other complex civil rights and

employment litigation.).

C. Plaintiffs Counsel Have Proven Knowledge of the Applicable Law andExperience in this Type of Litigation

Proposed Interim Co-Lead Class Counsel are not only experienced in litigating class action

cases, they are also particularly knowledgeable about the laws applicable to this action. Gardy & Notis

is very familiar with litigating large-scale consumer actions and is currently litigating a variety of other

cases in this District and is very familiar with not only the New Jersey laws at issue in this case, but

also Californias UCL and CLRA statutes. ThurstonsCounsel have extensive experience prosecuting

similar food labeling and consumer cases. Indeed, Thurstons Counsel recently settled, Zeisel v.

Diamond Foods, Inc., No. C 10-01192 JSW, 2011 WL 2221113 (N.D. Cal. June 7, 2011). Diamond

involved a nationwide litigation of class of consumers who purchased walnuts mislabeled with health

claims in violation of the FDA regulations and California law. Plaintiff withstood a motion to dismiss

successfully certifying a nationwide class under the CLRA, UCL, False Advertising Law, and for unjust



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enrichment. Id. at *10-12. After two years of litigation, the matter was ultimately settled and finally

approved. The Court had two opportunities to consider the adequacy of Counsel, first on class

certification and then again on preliminary approval. On both occasions the Court appointed

Thurstons Counsel as class counsel. Specifically the Court found Counsel to have extensive

experience in prosecuting complex consumer litigation, noting the Diamond case was vigorously

litigated through a motion to dismiss, class certification and impending summary judgment before

being resolved. Zeisel v. Diamond Foods, Inc., No. C 1001192 JSW, 2012 WL 4902970, *3 (N.D.

Cal. Oct. 16, 2012). Accordingly, proposed Interim Co-Lead Class Counsel have the requisite

knowledge in the underlying law to satisfy Rule 23(g)(1)(A)(iii).

D. Proposed Interim Co-Lead Class Counsel Have and Will Dedicate theResources Necessary to Represent the Class

Proposed Interim Co-Lead Counsel not only have the knowledge, experience and ability

represent the proposed class, they also have the resources necessary to litigate this case. Counsel have

dedicated resources to thoroughly investigate, develop, and gather evidence supporting the underlying

allegations and bringing this matter to light, and the findings of their investigations are clearly set forth

in the allegations of their respective complaints. Further, as experienced class action litigators with

practices dedicated to the prosecution of class actions, they have collectively demonstrated that they

have the ability and the resources to efficiently and effectively prosecute large complex cases on a

contingency basis. Indeed, proposed Interim Co-Lead Class Counsel have and are funding litigation

against some of the largest corporations in the world, including Google, Mercedes-Benz USA, LLC and

Daimler AG, Apple, Inc., and UBS. Going forward, proposed Interim Co-Lead Counsel will continue

to staff this case with experienced lawyers to prepare pleadings, write memoranda, conduct discovery

and prepare for trial. As Interim Co-Lead Class Counsel, their firms will continue to commit the same

resources and effort to this case as they have committed to other, successful litigation efforts. Counsel

clearly maintain the financial and litigation resources to properly represent plaintiffs and the class in the

consolidated action in satisfaction of Rule 23(g)(1)(A)(iv).



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III. The Court Should Grant Plaintiffs Leave to Amend

Plaintiffs respectfully request that the Court grant them leave to amend. Rule 15 of the Federal

Rules of Civil Procedure (Rule 15) provides, in pertinent part, that leave to amend [shall be] freely

give[n] when justice so requires. Fed. R. Civ. P. 15(a)(2) (emphasis added). Here, justice requires

Plaintiffs be granted leave to amend a Consolidated Amended Complaint. The Supreme Court, the

Ninth Circuit, and this Court have repeatedly reaffirmed that leave to amend is to be granted with

extreme liberality. DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 186 (9th Cir. 1987) (citation

omitted); see, e.g., Foman v. Davis, 371 U.S. 178, 182 (1962) (leave to amend should be freely given);

Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003) (Absent prejudice, or a

strong showing of any of the remaining Foman factors, there exists apresumption under Rule 15(a) in

favor of granting leave to amend.) (emphasis in original); Cooper Dev. Co. v. Emprs Ins. of Wausau,

765 F. Supp. 1429, 1432 (N.D. Cal. 1991) (courts have been quite liberal in granting leave to amend).

Leave to amend is appropriate unless Defendants can show they will suffer undue prejudice or

establish bad faith or dilatory motive on the part of the movant, [or] repeated failure to cure

deficiencies by amendments previously allowed . Foman, 371 U.S. at 182. Moreover, it is an abuse

of discretion and inconsistent with the spirit of the Federal Rules to refuse to grant the leave without

any justifying reason appearing for the denial. Id. at 182.

Here, the Thurston andCorriette complaints, while based on the same factual circumstances,

allege different causes of action. In consolidating the actions, Plaintiffs seek to file a unified complaint

that will encompass the allegations set forth in each of the pending actions. Considering the controlling

authority in favor of a policy allowing liberal pleading amendments, Plaintiffs respectfully assert that

there is more than enough reason to grant Plaintiffs leave to file a Consolidated Amended Complaint.

Plaintiffs have not unduly delayed or engaged in bad faith tactics in seeking leave of Court. Further,

Plaintiffs requested relief will not unduly prejudice Defendants. There is no trial date or dispositive

motions currently pending. See, e.g., JSR Micro, Inc. v. QBE Ins. Corp., No. C 09-3044 PJH, 2010 WL

5211504, at *2 (N.D. Cal. Dec. 16, 2010). Thus, Defendants cannot show any undue prejudice that

would result from the Court granting this Motion for Leave to Amend.



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CONCLUSION

For all of the reasons set forth above, Plaintiffs respectfully request that the Court consolidate

the Breyers Actions, then appoint Gardy & Notis; Stember Feinstein Doyle, Payne & Kravec, LLC; the

Law Offices of Janet Lindner Spielberg; and the Braun Law Group, P.C., as Interim Co-Lead Class

Counsel for the consolidated action, and grant leave to file the proposed Consolidated Amended

Complaint.

DATED: May 6, 2013 Respectfully Submitted,

By: /s/ Jennifer SarnelliJennifer SarnelliJames S. NotisGARDY & NOTIS, LLP

560 Sylvan AvenueEnglewood Cliffs, NJ 07632Phone: (201) 567-7377Fax: (201) 567-7337


Michael D. BraunBRAUN LAW GROUP, P.C.10680 W. Pico Boulevard, Suite 280Los Angeles, CA 90064

Phone: (310) 836-6000Fax: (310) 836-6010

Janet Linder SpielbergLAW OFFICE OF JANET LINDNERSPIELBERG12400 Wilshire Blvd., Suite 400Los Angeles, CA 90025Phone: (310) 392-8801Fax: (310) 278-5938

Joseph N. Kravec, Jr.STEMBER FEINSTEIN DOYLE

PAYNE & KRAVEC, LLCAllegheny Building, 17th Floor429 Forbes AvenuePittsburgh, PA 15219Phone: (412) 281-8400Fax: (412) 281-1007Attorneys for Plaintiffs Thurston,

Denmon-Clark



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Certificate of Service

The undersigned hereby certifies that all counsel of record who are deemed to have consented to

electronic service are being served this 6th day of May 2013, with a copy of this document via the

Courts CM/ECF system. I certify that all parties who have appeared in this case are represented by

counsel who are CM/ECF participants.

/s/ Jennifer SarnelliJennifer Sarnelli



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[PROPOSED]ORDERGRANTING PLAINTIFFSMOTION FOR

CONSOLIDATION,APPOINTMENT OF INTERIM


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Michael D. Braun (167416)BRAUN LAW GROUP, P.C.10680 W. Pico Blvd., Suite 280Los Angeles, CA 90064Tel: (310) 836-6000Fax: (310) 836-6010

Joseph N. Kravec, Jr.(admittedpro hac vice)STEMBER FEINSTEIN DOYLE

PAYNE & KRAVEC, LLCAllegheny Building, 17th Floor429 Forbes AvenuePittsburgh, PA 15219Tel: (412) 281-8400Fax: (412) 281-1007

Janet Lindner Spielberg (221926)LAW OFFICES OF JANET LINDNER

SPIELBERG12400 Wilshire Boulevard, Suite 400Los Angeles, California 90025Tel: (310) 392-8801Fax: (310) 278-5938

James S. Notis (admittedpro hac vice)

Jennifer Sarnelli (242510)

GARDY & NOTIS, LLP

560 Sylvan Avenue

Englewood Cliffs, NJ 07632

Tel: (201) 567-7377Fax: (201) 567-7337


Attorneys for PlaintiffsThurston and Denmon-Clark

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

CHANEE THURSTON and TANASHADENMON-CLARK on behalf of themselvesand all others similarly situated,

Plaintiffs

v.

CONOPCO, INC. d/b/a UNILEVER

(formerly d/b/a GOOD HUMOR-BREYERS)d/b/a BREYERS,

Defendant.


CLASS ACTION

[PROPOSED] ORDER GRANTINGPLAINTIFFS MOTION FORCONSOLIDATION PURSUANT TO FED. R.CIV. P. 42(a), APPOINTMENT OF INTERIMCO-LEAD COUNSEL PURSUANT TO FED. R.CIV. P. 23(g), AND LEAVE TO AMEND

Hearing Date: June 12, 2013Time: 9:00 a.m.Courtroom: 3 (Oakland Courthouse)

Case4:10-cv-04937-PJH Document99-1 Filed05/06/13 Page1 of 5


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[PROPOSED]ORDERGRANTING PLAINTIFFSMOTION FOR



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ROSS CORRIETTE and JAMES WALDRON

on behalf of themselves and all others similarlysituated,

Plaintiffs

v.

UNILEVER d/b/a BREYERS,

Defendant.

RELATED CASE

Case No. 11-cv-01811-PJH



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1 [PROPOSED]ORDERGRANTING PLAINTIFFSMOTION FOR



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Having considered plaintiffs Chanee Thurston, Tanasha Denmon-Clark, Ross Corriette, and

James Waldron (Plaintiffs) Motion for Consolidation Pursuant to Fed. R. Civ. P. 42(a), Appointment

of Interim Co-Lead Counsel Pursuant To Fed. R. Civ. P. 23(g), and Leave to Amend (the Motion), all

papers filed in support and in opposition thereto, the argument of counsel and good cause appearing

therefore, IT IS HEREBY ORDERED that:

1. Plaintiffs Motion is GRANTED;2. The above-captioned actions shall be consolidated for all purposes, including pretrial

proceedings and trial, pursuant to Fed. R. Civ. P. 42(a);

3. All documents previously filed to date in the cases consolidated herein are deemed apart of the record in the Consolidated Action. Every pleading in the consolidated action shall have the

following caption:

In re Breyers All Natural Ice CreamConsumer Litigation


CLASS ACTION

4. Any other actions now pending in, later filed in, or transferred to this Court which ariseout of, or are related to, the same facts as alleged in the above-captioned cases shall be consolidated for

all purposes, if and when they are brough to this Courts attention;

5. The law firms of Gardy & Notis, LLP; Stember Feinstein Doyle, Payne & Kravec, LLC;the Law Offices of Janet Lindner Spielberg; and the Braun Law Group, P.C. are hereby appointed as

Interim Co-Lead Counsel;

6. In appointing Interim Co-Lead Counsel the Court considered Federal Rule of CivilProcedure 23(g)(3) which states, The court may designate interim counsel to act on behalf of a

putative class before determining whether to certify the action as a class action. Rule 23 requires that,

when appointing counsel, the court consider the following factors: (i) the work counsel has done in

identifying or investigating potential claims in the action; (ii) counsels experience in handling class



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actions, other complex litigation, and the types of claims asserted in the action; (iii) counsels

knowledge of the applicable law; and (iv) the resources that counsel will commit to representing the

class. The law firms of Gardy & Notis, LLP; Stember Feinstein Doyle, Payne & Kravec, LLC; the Law

Offices of Janet Lindner Spielberg; and the Braun Law Group, P.C. meet each of these requirements;

7. Plaintiffs Interim Co-Lead Counsel shall have day-to-day responsibility for the conductof the consolidated litigation; shall determine how to prosecute the case and shall initiate, coordinate

and supervise the efforts of plaintiffs counsel in the consolidated action in the areas of discovery,

briefing, trial and settlement.

8. Plaintiffs Interim Co-Lead Counsel may delegate responsibility for specific tasks toother plaintiffs counsel in the consolidated action in a manner to assure that pretrial preparation is

conducted effectively, efficiently and economically; shall assist in maintaining communication among

counsel; and shall monitor the activities of plaintiffs counsel to assure that schedules are met and

unnecessary expenditures of time and money are avoided. Plaintiffs Interim Co-Lead Counsel shall

maintain the official service list of all plaintiffs and plaintiffs counsel in the consolidated action,

including their addresses. Plaintiffs Interim Co-Lead Counsel shall perform whatever any additional

functions that may be assigned to them by the Court. Agreements reached between Defendant and

Plaintiffs Interim Co-Lead Counsel are binding on all plaintiffs and their counsel. No discovery shall

be served, and no motion shall be filed, by any plaintiffs counsel without the consent of Plaintiffs

Interim Co-Lead Counsel, unless leave of Court is obtained.

9. Service of all papers filed with the Court shall be accomplished by e-filing, and no othertype of service shall be required. Service of all papers that are not filed with the Court shall be

accomplished by plaintiffs serving defendants counsel, and by defendant serving Plaintiffs Interim

Co-Lead Counsel, as applicable, by either: (i) email (ii) overnight mail service; or (iii) hand delivery.

Whenever feasible, the serving party shall send courtesy copies simultaneously via e-mail in PDF

format, to Defendants counsel or to Plaintiffs Interim Co-Lead Counsel, as applicable.



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10. Plaintiffs are hereby grated leave to file the proposed Consolidated Amended Complaint.Plaintiffs shall file the proposed Consolidated Amended Complaint within 14 days of the date this

Order is entered.

IT IS SO ORDERED

____________________ ___________________________________DATED HONORABLE PHYLLIS J. HAMILTON

UNITED STATES DISTRICT COURT JUDGE


Motion Consolidate Thurston v Unilever

Documents

Transcript of Motion Consolidate Thurston v Unilever