In re Nurture Baby Food Litigation

Background

The consolidated actions concern allegations that baby foods manufactured and sold by Nurture, Inc. contained heavy metals and perchlorates. Before the court decided whether to certify a class, several groups of plaintiffs’ counsel submitted competing applications under Federal Rule of Civil Procedure 23(g)(3) to be appointed interim co-lead counsel for the proposed class.

The applications were submitted by the Stewart Movants, seeking appointment of Lori G. Feldman and Rebecca A. Peterson; the W-R Movants, seeking appointment of Melissa S. Weiner and Michael R. Reese; and the Philippe Movants, seeking appointment of Gibbs Law Group LLP, Pollock Cohen LLP, and Kohn Swift & Graf, P.C. A separate application to appoint Steven L. Bloch and Aaron Zigler had been withdrawn before the hearing.

Legal standard

Rule 23(g)(3) allows a court to designate interim counsel to act for a proposed class before deciding whether to certify the case as a class action. The court generally considers the same factors used to evaluate whether class counsel would adequately represent the class, including counsel’s work investigating the claims, experience with class actions and similar litigation, knowledge of the applicable law, and the resources counsel will commit. When multiple applicants satisfy those requirements, the court must appoint the applicant best able to represent the plaintiffs’ interests.

Reasons for the appointment

The court found that all applicants had significant experience litigating complex class actions, including consumer claims involving multiple states. It nevertheless concluded that the Stewart Movants had stronger grounds for appointment because they had effectively managed the early stages of the litigation. They had filed the first case in the district, moved to consolidate related cases, and continued advancing the matter through revised proposed orders and supplemental submissions.

The court also considered Peterson’s recent appointment as interim co-lead counsel in a related baby-food consumer-protection case involving allegations that packaging failed to disclose heavy metals. According to the opinion, counsel obtained a favorable ruling on a motion to dismiss or, alternatively, stay that case. The court determined that Peterson’s leadership in both matters would promote efficiency and economy for the proposed class.

The court further noted that Feldman was based in New York, had been admitted to the Southern District of New York in 1991, and was licensed in New York. It stated that this experience could provide efficiencies in a complex consolidated action pending in New York against a New York defendant.

Rulings

The court granted the motion to appoint Lori G. Feldman and Rebecca A. Peterson as interim co-lead counsel under Rule 23(g)(3). It denied the request to appoint an executive committee, explaining that such a committee could increase costs and duplicate efforts. The court stated that two co-lead counsel were sufficient at this stage.

The court denied the application to appoint Melissa S. Weiner and Michael R. Reese as interim co-lead counsel. It also denied the application to appoint Gibbs Law Group LLP, Pollock Cohen LLP, and Kohn Swift & Graf, P.C. as interim co-lead counsel.

Duties and scope of the order

Under Rule 23(g)(4), Feldman and Peterson were required to fairly and adequately represent the class. The order gave them responsibility for coordinating the plaintiffs’ pretrial activities, including discovery, filings, hearings, communications with the court and Nurture, settlement discussions, negotiations, selection of experts, coordination of plaintiffs’ counsel, case expenses, status reports, and procedures for attorneys’ fees and expenses. The order applied to the consolidated actions and to actions later consolidated with them. The clerk was asked to terminate docket entries 69, 73, and 85.