IN RE PLUM BABY FOOD LITIGATION

Background

The consolidated litigation includes consumer-protection claims related to a February 4, 2021 report by a U.S. House of Representatives subcommittee. The report stated that many popular baby and toddler foods possibly contained excessive levels of arsenic, cadmium, lead, and mercury. The court identified Plum, PBC and its then-parent company, Campbell Soup Company, as defendants in the related actions.

Defendants moved under 28 U.S.C. § 1404(a) to transfer the consolidated action to the District of New Jersey, where four similar actions had also been consolidated. Two applications sought appointment of interim class counsel: one from plaintiff Sarah Brown and one from the Gulkarov plaintiffs. Defendants took no position on the counsel-appointment motions.

Motion to Transfer

The court denied the transfer motion. Section 1404(a) requires a court first to determine whether the case could have been brought in the proposed transferee district and then to determine whether transfer would better serve the convenience of the parties and witnesses and the interests of justice.

The court was not persuaded that the first requirement was met. It found that the papers did not clearly establish that Plum primarily conducted business in New Jersey or that the claims arose from or related to Plum’s activities there. Defendants relied mainly on declarations stating that Plum’s principal place of business was in Camden, New Jersey and that its operations were associated with Campbell’s headquarters. Plaintiffs offered California filings and website terms listing Emeryville, California as Plum’s principal executive office, officers’ location, or contact address. The court found that defendants had not provided sufficient evidence to overcome those materials or show that Plum was headquartered in New Jersey or that the relevant activities occurred there.

The court also held that, even assuming the case could have been brought in New Jersey, defendants had not shown that transfer was appropriate. The court considered the convenience of the parties and witnesses, access to evidence, the possibility of consolidating related cases, court congestion, local interest, the parties’ forum choice, and the forums’ familiarity with the applicable law. It found that convenience and access to evidence did not decidedly favor New Jersey, and that the possibility of consolidation there was outweighed by New Jersey’s greater relative caseload. The court found that California had a stronger local interest because Plum had previously been based there and had been acquired by a California company. The remaining factors were neutral or weighed against transfer. The motion to transfer was therefore denied.

Interim Class Counsel

The court granted in part and denied in part the Gulkarov plaintiffs’ motion. It appointed Rebecca A. Peterson and Susana Cruz Hodge as Interim Co-Lead Class Counsel for the plaintiffs and other members of the proposed classes in the consolidated action. Their assigned responsibilities include coordinating plaintiffs’ claims and counsel, managing communications and filings, appearing at hearings and conferences, conducting discovery, negotiating with defendants, consulting with experts, preparing status reports, and developing procedures for attorneys’ fees and expenses subject to court approval.

The court declined to formally appoint Stephen R. Basser as an Executive Committee member at that time, finding that the structure would increase administrative expense. The court stated that Interim Co-Lead Class Counsel could delegate responsibilities to him and could later petition for formal appointment by showing good cause. Sarah Brown’s motion for appointment of interim class counsel was denied.

Other Directions and Disposition

The parties were directed to meet and confer and file a proposed schedule for an amended complaint and the response to it within five business days of the order. Interim Co-Lead Counsel were directed to promptly serve the order on counsel in related actions, to the extent they were aware of those actions and the relevant counsel had not registered for electronic filing. The order terminated Docket Numbers 34, 70, and 71. The order addressed venue and interim case management; it did not decide the underlying consumer-protection claims.