BONNETT FAIRBOURN FRIEDMAN KING & SPALDING LLP 1 & BALINT, PC GEORGE R. MORRIS (State Bar No. 249930) 2 Patricia N. Syverson (State Bar No. 203111) gmorris@kslaw.com psyverson@bffb.com 50 California, Suite 3300 3 600 West Broadway, Suite 900 San Francisco, CA 94111 San Diego, CA 92101 Telephone: (415) 318 1243 4 Telephone: (619) 798-4593 Facsimile: (415) 318-1300 5 Elaine A. Ryan Attorneys for Defendant The Procter & 6 Gamble(To be admitted pro hac vice) Company eryan@bffb.com 7 Carrie A. Laliberte (To be admitted pro hac vice) 8 claliberte@bffb.com 2325 E. Camelback Rd., Suite 300 9 Phoenix, AZ 85016 10 Telephone: (602) 274-1100 11 Counsel for Plaintiff Liza Lichtinger and the Proposed Class 12 13 UNITED STATES DISTRICT COURT 14 15 NORTHERN DISTRICT OF CALIFORNIA 16 SAN FRANCISCO DIVISION 17 18 LIZA LICHTINGER, Case No . 21-cv-02680-MMC 19 Plaintiffs, STIPULATION AND [PROPOSED] ORDER TO TRANSFER VENUE TO 20 THE SOUTHERN DISTRICT OF NEW v. YORK 21 THE PROCTER & GAMBLE COMPANY, Hon. Maxine M. Chesney 22 Defendant. 23 24 25 26 27 1 The parties, by and through their respective counsel, stipulate and agree as follows: 2 WHEREAS, there are multiple pending class action cases alleging misrepresentation in 3 connection with the sale of Defendant The Procter & Gamble Company’s (“P&G”) Gum & 4 Enamel Repair toothpaste (the “Products”): the above captioned matter pending before this Court 5 (“Lichtinger”); Nieves v. The Procter & Gamble Co., No. 7:21-cv-00186 (“Nieves”), pending in 6 the Southern District of New York before Judge Cathy Seibel; and Keirsted v. The Procter & 7 Gamble Co., No. 6:21-cv-0778 (“Keirsted”), pending in the Middle District of Florida before 8 Judge Roy B. Dalton (collectively, “Related Cases”);1 9 WHEREAS, all of the cases involve the same class allegations that P&G’s gum repair 10 representation is false, misleading, and reasonably likely to deceive the public; 11 WHEREAS, all parties to the different cases have conferred and agree that the transfer and 12 consolidation of Lichtinger and Keirsted to the Southern District of New York into the Nieves 13 action is in the interest of all parties and will advance judicial economy and the efficient use of 14 resources by all parties because: (i) the transfer and consolidation of the claims from Lichtinger to 15 Nieves eliminates a situation in which there are three overlapping cases pending in three different 16 federal courts, all alleging misrepresentation regarding the sale of the Products and all are brought 17 as class actions; (ii) the transfer and consolidation of the claims from Lichtinger will end the 18 current situation in which P&G is subject to discovery in three cases that is often overlapping 19 and/or covers the same facts; and (iii) the transfer and consolidation of the claims from Lichtinger 20 will eliminate the possibility of inconsistent rulings and verdicts, in that all claims involving 21 alleged misrepresentation of the Products will be litigated together, and Plaintiffs will submit one 22 motion for class certification on behalf of consumers in one court, rather than three overlapping 23 class certification motions at three separate times in three separate courts. 24
25 1 There are additional putative class action cases that involve the same allegations regarding sale of P&G’s Gum & Enamel Repair toothpaste, including: Drake v. The Procter & Gamble Co., No. 3:21-cv- 26 00279-DWD (S.D. Ill.) and Helterbrand v. The Procter & Gamble Co., No. 21SL-CC01372 (Circuit Court for the County of St. Louis, Missouri, 21st Judicial District). Plaintiffs in these two cases are 27 represented by the same counsel. 2 1 WHEREAS, the parties agree and respectfully submit that it is lawful, appropriate, and 2 efficient for the claims made by Plaintiff Liza Lichtinger to be transferred from the United States 3 District Court for the Northern District of California to the Southern District of New York and 4 consolidated with the Nieves case, because: (i) no questions of jurisdiction are implicated by this 5 transfer; (ii) P&G waives any venue arguments it might otherwise have to the Southern District of 6 New York’s taking venue under such doctrines as the pendent venue doctrine; (iii) the transfer and 7 consolidation creates no prejudice to P&G (which is subject to jurisdiction in both the Southern 8 District of New York and the Northern District of California), or the private plaintiffs, or the 9 classes they seek to represent; (iv) P&G has not yet answered or otherwise responded to the 10 Complaint nor has P&G or Plaintiff taken any other action in the Lichtinger action; and (v) the 11 parties stipulate that conditions for consolidation, in these circumstances, are satisfied; 12 WHEREAS, because the subject matter of this action is the same as the first-filed Nieves 13 action and plaintiffs in the Related Cases already have a plan in place to litigate their claims 14 together as part of Nieves, principles of sound judicial administration counsel that this action be 15 transferred to the Southern District of New York under the first-to-file rule. See SB Hosp. Palm 16 Springs, LLC v. Baymont Franchise Sys., No. EDCV 19-381 JGB (KKx), 2019 U.S. Dist. LEXIS 17 171241, at *7 (C.D. Cal. May 8, 2019) (“When two actions involving similar parties and issues 18 are commenced in separate forums, a court should typically give preference to the first-filed 19 plaintiff’s choice of forum under the first-to-file rule.”); Fuentes v. Maxim Healthcare Servs., No. 20 3:17-cv-2178-CAB-(NLS), 2017 U.S. Dist. LEXIS 203517 (S.D. Cal. Dec. 8, 2017) (transferring 21 case where plaintiffs in two related cases wanted to be consolidated in district of first-filed 22 litigation). 23 IN FURTHER SUPPORT OF TRANSFER, the Ninth Circuit has recognized, the first-to- 24 file rule is a “doctrine of federal comity which permits a district court to decline jurisdiction over 25 an action when a complaint involving the same parties and issues has already been filed in another 26 district.” Pacesetter Sys. Inc. v. Medtronic, Inc., 678 F.2d 93, 94–95 (9th Cir. 1982). The doctrine 27 3 1 of comity seeks to promote judicial efficiency by avoiding unnecessary burden on the federal 2 judiciary and duplicative and conflicting judgments. See Church of Scientology of Cal. v. United 3 States Dep’t of Army, 611 F.2d 738, 750 (9th Cir. 1979) (partially overruled on unrelated grounds); 4 Animal Legal Def. Fund v. United States FDA, 836 F.3d 987, 990 (9th Cir. 2016). 5 In applying the “first-to-file” rule, a court looks to three threshold factors: “(1) the 6 chronology of the two actions; (2) the similarity of the parties; and (3) the similarity of the issues.” 7 Red v. Unilever U.S., Inc., No. 09-07855 MMM (AGRx), 2010 U.S. Dist. LEXIS 151389 at *84 8 (C.D. Cal. Jan. 25, 2010). These three factors are satisfied here. 9 First, the Nieves action was filed on January 9, 2021, three months prior to the filing of the 10 Lichtinger action. 11 Second, both the Nieves and the Lichtinger actions involve one sole defendant, P&G. 12 Third, both of these actions are seeking damages and equitable relief individually and on 13 behalf of proposed class members, purchasers of the Products. The claims in both cases arise from 14 P&G’s allegedly false, misleading, and deceptive marketing and selling of the Products as able to 15 repair gums. The complaints in both actions point to the use of the Product name “Gum & Enamel 16 Repair” as the basis of their misrepresentation.
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BONNETT FAIRBOURN FRIEDMAN KING & SPALDING LLP 1 & BALINT, PC GEORGE R. MORRIS (State Bar No. 249930) 2 Patricia N. Syverson (State Bar No. 203111) gmorris@kslaw.com psyverson@bffb.com 50 California, Suite 3300 3 600 West Broadway, Suite 900 San Francisco, CA 94111 San Diego, CA 92101 Telephone: (415) 318 1243 4 Telephone: (619) 798-4593 Facsimile: (415) 318-1300 5 Elaine A. Ryan Attorneys for Defendant The Procter & 6 Gamble(To be admitted pro hac vice) Company eryan@bffb.com 7 Carrie A. Laliberte (To be admitted pro hac vice) 8 claliberte@bffb.com 2325 E. Camelback Rd., Suite 300 9 Phoenix, AZ 85016 10 Telephone: (602) 274-1100 11 Counsel for Plaintiff Liza Lichtinger and the Proposed Class 12 13 UNITED STATES DISTRICT COURT 14 15 NORTHERN DISTRICT OF CALIFORNIA 16 SAN FRANCISCO DIVISION 17 18 LIZA LICHTINGER, Case No . 21-cv-02680-MMC 19 Plaintiffs, STIPULATION AND [PROPOSED] ORDER TO TRANSFER VENUE TO 20 THE SOUTHERN DISTRICT OF NEW v. YORK 21 THE PROCTER & GAMBLE COMPANY, Hon. Maxine M. Chesney 22 Defendant. 23 24 25 26 27 1 The parties, by and through their respective counsel, stipulate and agree as follows: 2 WHEREAS, there are multiple pending class action cases alleging misrepresentation in 3 connection with the sale of Defendant The Procter & Gamble Company’s (“P&G”) Gum & 4 Enamel Repair toothpaste (the “Products”): the above captioned matter pending before this Court 5 (“Lichtinger”); Nieves v. The Procter & Gamble Co., No. 7:21-cv-00186 (“Nieves”), pending in 6 the Southern District of New York before Judge Cathy Seibel; and Keirsted v. The Procter & 7 Gamble Co., No. 6:21-cv-0778 (“Keirsted”), pending in the Middle District of Florida before 8 Judge Roy B. Dalton (collectively, “Related Cases”);1 9 WHEREAS, all of the cases involve the same class allegations that P&G’s gum repair 10 representation is false, misleading, and reasonably likely to deceive the public; 11 WHEREAS, all parties to the different cases have conferred and agree that the transfer and 12 consolidation of Lichtinger and Keirsted to the Southern District of New York into the Nieves 13 action is in the interest of all parties and will advance judicial economy and the efficient use of 14 resources by all parties because: (i) the transfer and consolidation of the claims from Lichtinger to 15 Nieves eliminates a situation in which there are three overlapping cases pending in three different 16 federal courts, all alleging misrepresentation regarding the sale of the Products and all are brought 17 as class actions; (ii) the transfer and consolidation of the claims from Lichtinger will end the 18 current situation in which P&G is subject to discovery in three cases that is often overlapping 19 and/or covers the same facts; and (iii) the transfer and consolidation of the claims from Lichtinger 20 will eliminate the possibility of inconsistent rulings and verdicts, in that all claims involving 21 alleged misrepresentation of the Products will be litigated together, and Plaintiffs will submit one 22 motion for class certification on behalf of consumers in one court, rather than three overlapping 23 class certification motions at three separate times in three separate courts. 24
25 1 There are additional putative class action cases that involve the same allegations regarding sale of P&G’s Gum & Enamel Repair toothpaste, including: Drake v. The Procter & Gamble Co., No. 3:21-cv- 26 00279-DWD (S.D. Ill.) and Helterbrand v. The Procter & Gamble Co., No. 21SL-CC01372 (Circuit Court for the County of St. Louis, Missouri, 21st Judicial District). Plaintiffs in these two cases are 27 represented by the same counsel. 2 1 WHEREAS, the parties agree and respectfully submit that it is lawful, appropriate, and 2 efficient for the claims made by Plaintiff Liza Lichtinger to be transferred from the United States 3 District Court for the Northern District of California to the Southern District of New York and 4 consolidated with the Nieves case, because: (i) no questions of jurisdiction are implicated by this 5 transfer; (ii) P&G waives any venue arguments it might otherwise have to the Southern District of 6 New York’s taking venue under such doctrines as the pendent venue doctrine; (iii) the transfer and 7 consolidation creates no prejudice to P&G (which is subject to jurisdiction in both the Southern 8 District of New York and the Northern District of California), or the private plaintiffs, or the 9 classes they seek to represent; (iv) P&G has not yet answered or otherwise responded to the 10 Complaint nor has P&G or Plaintiff taken any other action in the Lichtinger action; and (v) the 11 parties stipulate that conditions for consolidation, in these circumstances, are satisfied; 12 WHEREAS, because the subject matter of this action is the same as the first-filed Nieves 13 action and plaintiffs in the Related Cases already have a plan in place to litigate their claims 14 together as part of Nieves, principles of sound judicial administration counsel that this action be 15 transferred to the Southern District of New York under the first-to-file rule. See SB Hosp. Palm 16 Springs, LLC v. Baymont Franchise Sys., No. EDCV 19-381 JGB (KKx), 2019 U.S. Dist. LEXIS 17 171241, at *7 (C.D. Cal. May 8, 2019) (“When two actions involving similar parties and issues 18 are commenced in separate forums, a court should typically give preference to the first-filed 19 plaintiff’s choice of forum under the first-to-file rule.”); Fuentes v. Maxim Healthcare Servs., No. 20 3:17-cv-2178-CAB-(NLS), 2017 U.S. Dist. LEXIS 203517 (S.D. Cal. Dec. 8, 2017) (transferring 21 case where plaintiffs in two related cases wanted to be consolidated in district of first-filed 22 litigation). 23 IN FURTHER SUPPORT OF TRANSFER, the Ninth Circuit has recognized, the first-to- 24 file rule is a “doctrine of federal comity which permits a district court to decline jurisdiction over 25 an action when a complaint involving the same parties and issues has already been filed in another 26 district.” Pacesetter Sys. Inc. v. Medtronic, Inc., 678 F.2d 93, 94–95 (9th Cir. 1982). The doctrine 27 3 1 of comity seeks to promote judicial efficiency by avoiding unnecessary burden on the federal 2 judiciary and duplicative and conflicting judgments. See Church of Scientology of Cal. v. United 3 States Dep’t of Army, 611 F.2d 738, 750 (9th Cir. 1979) (partially overruled on unrelated grounds); 4 Animal Legal Def. Fund v. United States FDA, 836 F.3d 987, 990 (9th Cir. 2016). 5 In applying the “first-to-file” rule, a court looks to three threshold factors: “(1) the 6 chronology of the two actions; (2) the similarity of the parties; and (3) the similarity of the issues.” 7 Red v. Unilever U.S., Inc., No. 09-07855 MMM (AGRx), 2010 U.S. Dist. LEXIS 151389 at *84 8 (C.D. Cal. Jan. 25, 2010). These three factors are satisfied here. 9 First, the Nieves action was filed on January 9, 2021, three months prior to the filing of the 10 Lichtinger action. 11 Second, both the Nieves and the Lichtinger actions involve one sole defendant, P&G. 12 Third, both of these actions are seeking damages and equitable relief individually and on 13 behalf of proposed class members, purchasers of the Products. The claims in both cases arise from 14 P&G’s allegedly false, misleading, and deceptive marketing and selling of the Products as able to 15 repair gums. The complaints in both actions point to the use of the Product name “Gum & Enamel 16 Repair” as the basis of their misrepresentation. The claims in both the Nieves and the Lichtinger 17 actions are therefore similar enough to meet the threshold to apply the “first-to-file” rule. 18 Transfer of this action to the Southern District of New York is also appropriate under 28 19 U.S.C. § 1404(a). Section 1404(1) provides: “For the convenience of parties and witnesses, in the 20 interest of justice, a district court may transfer any civil action to any other district or division 21 where it might have been brought or to any district or division to which all parties have consented.” 22 23 24 25 26 27 4 1 NOW, THEREFORE, THE PARTIES AGREE AND STIPULATE AS FOLLOWS: 2 1. The parties stipulate and jointly move this Court to transfer the individual and class 3 claims in Lichtinger made by Plaintiff Liza Lichtinger, pursuant to California’s Unfair 4 Competition Law and Consumer Legal Remedies Act, to the United States District Court for the 5 Southern District of New York and stipulate that those claims in Nieves should be designated as 6 related cases and that Lichtinger’s claims should be consolidated with the Nieves action. The 7 relevant limitations period for Plaintiff Lichtinger’s claims will be governed by applicable law in 8 the jurisdiction where originally filed. 9 2. The parties represent that they are submitting a courtesy copy of this Stipulation 10 and Proposed Order to Judge Seibel. 11 Dated: June 28, 2021 Respectfully submitted, 12 KING & SPALDING LLP 13 By: /s/ George R. Morris 14 George R. Morris KING & SPALDING LLP 15 gmorris@kslaw.com 50 California Street, Suite 3300 16 San Francisco, CA 94111 Telephone: (415) 318 1243 17 Attorneys for Defendant The Procter & 18 Gamble Company
19 By: /s/ Patricia N. Syverson Patricia N. Syverson 20 BONNETT FAIRBOURN FRIEDMAN & BALINT, PC 21 psyberson@bffb.com 600 West Broadway, Suite 900 22 San Diego, CA 92101 Telephone: (619) 798-4593 23 Elaine A. Ryan 24 eryan@bffb.com 25 Carrie A. Laliberte claliberte@bffb.com 26 2325 E. Camelback Rd., Suite 300 Phoenix, AZ 85016 27 5 Telephone: (602) 274-1100 Counsel for Plaintiff Liza Lichtinger 2 and the Proposed Class 4 ECF ATTESTATION 5 Pursuant to Local Civil Rule 5-1(1)(3), I, George R. Morris, attest that I obtained the © || concurrence of Patricia N. Syverson in the filing of this document. 7 I declare under penalty of perjury under the laws of the United States of America that the 8 foregoing is true and correct. 10 || Dated: June 28, 2021 /s/_George R. Morris GEORGE R. MORRIS, Bar No. 249930 1] 12 13 14 15 16 Pursuant to the parties’ stipulation, IT IS SO ORDERED. Dated: June 28 2021 18 NIfED STATES DISTRICT J E 19 20 21 22 23 24 25 26 27 28 STIPULATION AND [PROPOSED] ORDER TO TRANSFER CASE NO. 21-cv-02680-MMC