In Re: 100% Grated Parmesan Cheese Marketing and Sales Practices Litigation

Northern District of Illinois, ilnd-1:2016-cv-05802

RESPONSE by Plaintiffs Yvonne Averhart, Elizabeth Bidgood, George Brahler, Jose Brown, Charles Bundy, Cindy Bustamante, Alyson Davies, Alan Ducorsky, Chauncy Ellison, Richard Evans, Alfonso Fata, Karen Ford, Tara Franklin, Michael Greene, Michael Hara, Taniesha Harwell, Janine Hechmer, Andrea Hogan, Debra Jackson, Michael Jones, Debra Lee, Samantha Lewin, John Lewis, Rhonda Lorenz, DALLAS MORENO, Kenneth Manfredi, Andrew Matecki, Patty Morelos, Yvette Ramona Knight Nash, Rosemary Quinn, Nancy Reeves, Barbara Reinbott, Larry Rollinger, Jr, Rita Schmoll, Beverly Schulze, Michelle Walker, Adam Weiss, Michael Wills, Ann Yankee, Rodney Zachary, becky sikes to the Moschetta Group's Application for Appointment

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Case: 1:16-cv-05802 Document #: 97 Filed: 08/18/16 Page 1 of 9 PageID #:549 UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION IN RE: 100% GRATED PARMESAN CHEESE 16 CV 5802 MARKETING AND SALES PRACTICES LITIGATION MDL 2705 Judge Gary S. Feinerman This Document Relates to All Cases MAJORITY PLAINTIFFS' RESPONSE TO THE MOSCHETTA GROUP'S APPLICATION FOR APPOINTMENT Case: 1:16-cv-05802 Document #: 97 Filed: 08/18/16 Page 2 of 9 PageID #:550 I. INTRODUCTION The experience and accomplishments of Majority Plaintiffs' proposed Interim Co-Lead Counsel, Ben Barnow of Barnow and Associates, P.C., Timothy G. Blood of Blood Hurst & O'Reardon LLP, and Lori G. Feldman of Levi & Korsinsky LLP (together, "Proposed Co-Lead Counsel"), far surpass those of the Moschetta Group's proposed lead counsel. Proposed Co-Lead Counsel also set forth the most efficient leadership structure and, as evidenced by the significant recoveries they have achieved and their work in this matter, possess the willingness and ability to work cooperatively with other counsel in advancing this matter. In accordance with Fed. R. Civ. P. 23(g), Proposed Co-Lead Counsel are best qualified to serve as Interim Co-Lead Counsel. II. ARGUMENT A. Majority Plaintiffs' Leadership Team Is the Most Experienced and Accomplished The qualifications and accomplishments of Proposed Co-Lead Counsel far surpass those of the Moschetta Group's proposed lead counsel. Proposed Co-Lead Counsel are nationally recognized for achieving extraordinary results in complex consumer class actions, including deceptive trade practice cases concerning the labeling of foods products. The results they have achieved in numerous consumer class actions evidence a multi-decade and continuing dedication to the successful enforcement of consumer rights. As a further testament to their abilities, the proposed Plaintiffs' Executive Committee, comprised of seven highly qualified and experienced class action attorneys, and numerous other plaintiffs' counsel in this litigation support their appointment. The applicable experience of Ms. Goldstein and Mr. Sultzer, the Moschetta Group's proposed co-leads, is not comparable to that of Proposed Co-Lead Counsel. For Ms. Goldstein, the Moschetta Group relies heavily on Gemelas v. Dannon Company (N.D. Ohio), which they 2 Case: 1:16-cv-05802 Document #: 97 Filed: 08/18/16 Page 3 of 9 PageID #:551 correctly describe as "the largest settlement ever against a food company." However, it was Timothy G. Blood, one of Proposed Co-Lead Counsel, who led the prosecution and settlement of that case.1 They also do not explain that Mr. Blood was Class Counsel in the Sketchers Toning Shoes Products Liability Litigation (W.D. Ky.), also cited in support of Ms. Goldstein's experience. Mr. Blood ran the prosecution of that case, including conducting the litigation and complex private-government negotiations leading to a historic recovery.2 Of the 10 other cases cited by the Moschetta Group relating to Ms. Goldstein's experience, it appears she was not a lead counsel in six of these matters and there is no indication what recoveries, if any, were achieved. Mr. Sultzer appears to have even less experience than Ms. Goldstein in prosecuting consumer class actions. He was primarily (or exclusively) a defense attorney until 2013 and, for apparently part of his legal career, focused his practice on asbestos defense. Although the Moschetta Group's initial filing identifies nine New York cases where the Sultzer Law Firm, recently formed in 2013, was a plaintiff's counsel or a lead or co-lead counsel, it is uncertain whether Mr. Sultzer (as opposed to another member of his firm) was involved in these matters and there is no indication that a successful recovery was achieved in any of the referenced cases. One can presume there was not much else to disclose. Plaintiffs and the putative classes are entitled to the most experienced, qualified, and capable counsel available. That is what Majority Plaintiffs' leadership team possesses and offers. 1 Mr. Blood was the sole Lead Counsel in the original Stipulation of Settlement, but added all of plaintiffs' counsel as Class Counsel, including Ms. Goldstein, in the Amended Stipulation of Settlement. 2 Ms. Goldstein did not play a significant role in Skechers. Similarly, Mr. Blood was the court appointed Class Counsel in Rosales, et al. v. FitFlop USA, LLC (S.D. Cal.). In the Mocshetta Group's application, Ms. Goldstein is mistakenly listed as serving in "an active or lead role" in that matter. The Moschetta Group's Summary at 11 (July 20, 2016) [D.E. #46]. Mr. Blood did not list his class counsel appointment in Rosales because the case did not present any particularly unusual or complex case management issues. 3 Case: 1:16-cv-05802 Document #: 97 Filed: 08/18/16 Page 4 of 9 PageID #:552 B. Proposed Co-Lead Counsel Offer the Most Efficient Leadership Structure Majority Plaintiffs' proposed leadership structure is well-defined, streamlined, and complete. Proposed Co-Counsel relied on their comprehensive experience in formulating the proposed leadership structure, which confirms the structure will contribute to the efficient prosecution of the matter. Majority Plaintiffs propose the appointment of Proposed Co-Lead Counsel as Plaintiffs' Interim Co-Lead Counsel and the appointment of a Plaintiffs' Executive Committee comprised of seven experienced class action attorneys, each of whom will be assigned to a specific track. Experience dictates it is generally more productive to have three co-leads, as opposed to two, because the structure allows for the resolution of any disagreements among co-lead counsel by majority vote should one become necessary. In any event, the synergism that will arise from the shared experience of Proposed Co-Lead Counsel provides reason enough for the proposed 3- way-lead structure. Additionally, the tracked Plaintiffs' Executive Committee is designed to enable the members, each of whom is an experienced class action lawyer, to focus their efforts on a specific defendant or group of defendants, which will lead to additional efficiencies. The Moschetta Group proposes the appointment of two co-lead counsel and liaison counsel, and that assignments would be made on an ad hoc basis to various other named and unnamed plaintiffs' firms. That approach has the potential to result in gross inefficiencies, because it incentivizes plaintiffs' counsel to read and review all filings relating to all tracks of defendants, rather than taking ownership for specific defendants, in the hopes of receiving the occasional assignment, resulting in heavy billings of no benefit to the putative classes. The approach proposed by Majority Plaintiffs is the approach most often adopted because it is the approach that works best. 4 Case: 1:16-cv-05802 Document #: 97 Filed: 08/18/16 Page 5 of 9 PageID #:553 C. Proposed Co-Lead Counsel's Proven Ability to Work Cooperatively with Other Counsel and Efforts to Advance the Litigation Proposed Co-Lead Counsel's past accomplishments and activities, as reflected in their curriculum vitae, demonstrate their willingness and ability to work cooperatively with other counsel and the Court. Without solid communication skills, they could not and would not have accomplished what they have achieved for the classes they have represented. These skills were already put to use in this matter in working with defendants' counsel to negotiate, complete, and file an informative joint Status Conference Statement [D.E. #44] for the Court's consideration in advance of the August 4, 2016 initial status conference. Separately, the Moschetta Group's focus on testing shows a lack of experience in these types of cases. It will be the responsibility of Plaintiffs' interim lead counsel, as appointed by the Court, to determine if testing is required. To date, no defendant has denied their products contain fillers. If testing is needed, care must be taken to determine the best test methodology and proper oversight must be provided. To avoid the use of potentially conflicting testing methods and methodologies and wasteful duplication, early testing should be performed with caution and for reasons beyond hoping to secure a leadership position. The significance of early testing is further diminished here, where certain of the products have already been tested by a credible organization, the product remains for testing, and it is likely that many, if not all, of the defendants possess documentation identifying the amount of filler used.3 3 Although certain members of Majority Plaintiffs' group have engaged limited testing measures, those efforts await finalization of Plaintiffs' organizational structure and proper timing juxtaposed, inter alia, extant testing in the possession of the manufacturers. 5 Case: 1:16-cv-05802 Document #: 97 Filed: 08/18/16 Page 6 of 9 PageID #:554 III. CONCLUSION For the reasons stated in Majority Plaintiffs' Motion for Appointment and as explained further herein, Majority Plaintiffs respectfully request that the Court appoint Ben Barnow, Timothy G. Blood, and Lori G. Feldman as Plaintiffs' Interim Co-Lead Counsel; appoint the following attorneys to the Plaintiffs' Executive Committee: Robert A. Clifford (SuperValu), Thomas A. Zimmerman, Jr. (SuperValu); John J. Driscoll (Target); Janine L. Pollack (Target); L. Timothy Fisher (Kraft); Todd S. Garber (Kraft); Michael McShane (Wal-Mart); Brant Penney (Wal-Mart); and Cari Campen Laufenberg (other defendants); and deny the application of the Moschetta Group. Dated: August 18, 2016 Respectfully submitted, /s/ Ben Barnow Ben Barnow Erich P. Schork Barnow and Associates, P.C. One N. LaSalle Street, Suite 4600 Chicago, Illinois 60602 (312) 621-2000 (p) (312) 641-5504 (f) Timothy G. Blood Blood Hurst & O'Reardon, LLP 701 B Street, Suite 1700 San Diego, CA 92101 (610) 338-1100 (t) 6 Case: 1:16-cv-05802 Document #: 97 Filed: 08/18/16 Page 7 of 9 PageID #:555 Lori G. Feldman Andrea Clisura Levi & Korsinsky LLP 30 Broad Street, 24th Floor New York, NY 10004 (212) 363-7500 (t) (212) 363-7171 (f) Proposed Interim Co-Lead Counsel Robert A. Clifford Clifford Law Offices, P.C. 120 N. LaSalle Street, 31st Floor Chicago, IL 60602 (312) 899-9090 Thomas A. Zimmerman, Jr. Zimmerman Law Offices, P.C. 77 W. Washington Street, Suite 1220 Chicago, Illinois 60602 (312) 440-0020 (t) (312) 440-4180 (f) John J. Driscoll The Driscoll Firm, P.C. 211 N. Broadway, 40th Floor St. Louis, MO 63102 (314) 932-3232 (t) (314) 932-3233 (f) Janine L. Pollack Wolf Haldenstein Adler Freeman & Herz LLP 270 Madison Avenue New York, New York 10016 (212) 545-4600 (t) (212) 545-4653 (f) 7 Case: 1:16-cv-05802 Document #: 97 Filed: 08/18/16 Page 8 of 9 PageID #:556 L. Timothy Fisher Bursor & Fisher, P.A. 1990 N. California Blvd., Suite 940 Walnut Creek, California 94596 (925) 300-4455 (t) (925) 407-2700 (f) Todd S. Garber Finkelstein, Blankenship, Frei-Pearson & Garber LLP 1311 Mamaroneck Avenue White Plains, New York 10605 (914) 298-3283 (t) (914) 824-1561 (f) Michael McShane Audet & Partners, LLP 711 Van Ness Avenue, Suite 500 San Francisco, California 94102 (415) 568-2555 (t) (415) 568-2556 (f) Brant D. Penney Reinhardt Wendorf Blanchfield E-1250 First National Bank Building 332 Minnesota Street St. Paul, Minnesota 55101 (651) 287-2100 (t) (651) 287-2103 (f) Cari Campen Laufenberg Keller Rohrback L.L.P. 1201 Third Avenue, Suite 3200 Seattle, Washington 98101 (206) 623-1900 (t) (206) 623-3384 (f) Proposed Executive Committee 8 Case: 1:16-cv-05802 Document #: 97 Filed: 08/18/16 Page 9 of 9 PageID #:557 CERTIFICATE OF SERVICE The undersigned hereby certifies that a copy of the foregoing document was filed on August 18, 2016, with the Clerk of the Court by using the CM/ECF system which will send a notice of filing to all counsel of record. /s/ Ben Barnow 9