1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 ----oo0oo---- 11 12 JEREMIAH PEARSON, individually No. 2:25-cv-01270 WBS SCR and on behalf of all others 13 similarly situated, 14 Plaintiff, MEMORANDUM AND ORDER RE: DEFENDANT MONDELEZ GLOBAL 15 v. LLC’S MOTION TO STAY OR TRANSFER VENUE 16 MONDELEZ GLOBAL LLC, 17 Defendant. 18 19 ----oo0oo---- 20 Plaintiff Jeremiah Pearson brought this putative class 21 action against defendant Mondelez Global LLC, claiming consumer 22 protection and contract law violations in connection with an 23 allegedly deceptive label on defendant’s product. (See Compl. 24 (Docket No. 1) ¶¶ 1-5.) Defendant now moves to stay under the 25 first-to-file rule on the grounds that plaintiff’s action mirrors 26 another consolidated class action currently pending in the 27 Northern District of Illinois. (See Docket No. 9 at 1-2.) 28 1 Defendant requests in the alternative to transfer venue pursuant 2 to 28 U.S.C. § 1404(a). (See id.) 3 I. Factual and Procedural Background 4 Defendant is a subsidiary of Mondelez International, 5 Inc. (“MII”), one of the largest snack food and chocolate 6 companies in the world. (See Docket No. 9-8 ¶ 1.) One of MII’s 7 products is OREO cookies, which defendant is “responsible for 8 manufacturing, distributing, and marketing” within the United 9 States. (Docket No. 9 at 8.) 10 A label on OREO products states the cookies are made 11 with “100% Sustainably Sourced Cocoa.” (Compl. ¶¶ 1-2.) The 12 label is accompanied by defendant’s “Cocoa Life” logo, which 13 refers to their “global cocoa ‘sustainability’ program, designed 14 to ‘make cocoa right’” by attempting to mitigate the humanitarian 15 and environmental harms wrought by the cocoa industry. (Id. ¶¶ 16 17-18.) 17 Plaintiff alleges this label is false, because 18 “[d]efendant uses an accounting method called ‘mass balance,’” 19 which “allows [d]efendant to mix cocoa beans from Cocoa Life 20 farms with non-certified cocoa beans from other farms.” (Id. ¶¶ 21 19-20.) Such allegedly mixed sourcing results in cookies with an 22 “uncertain composition.” (Id. ¶ 7.) 23 This class action was preceded by two others with which 24 it shares a factual background. (See Docket No. 9-2 ¶¶ 2-3.) 25 The first was filed in the Northern District of California by 26 Megan Waggener against MII, the second in the Northern District 27 of Illinois by Tim Gollogly, also against MII. (See id. ¶¶ 2-3.) 28 Judge Martínez-Olguín of the Northern District of California 1 granted MII’s request to transfer the Waggener action to the 2 Northern District of Illinois, and thereafter the cases were 3 consolidated. (See Docket No. 9 at 4.) 4 The consolidated class action complaint (“the Waggener 5 complaint”) also claims the OREO label is false. (See Docket No. 6 9-8 ¶ 4.) The Waggener complaint -- like plaintiff’s –- takes 7 issue with mixed cocoa sourcing, but Waggener’s primary grievance 8 appears to be with the unethical consequences of that practice 9 rather than the resulting uncertainty in product composition. 10 (See Docket No. 9-8 ¶ 4.) 11 II. Legal Standard 12 The first-to-file rule is “a judicially created 13 doctrine of federal comity, which applies when two cases 14 involving substantially similar issues and parties have been 15 filed in different districts.” In re Bozic, 888 F.3d 1048, 1051 16 (9th Cir. 2018) (internal quotation marks and citations omitted). 17 “Under that rule, the second district court has the discretion to 18 transfer, stay, or dismiss the second case in the interest of 19 efficiency and judicial economy.” Id. at 1051-52 (internal 20 quotation marks and citation omitted). 21 To determine whether to apply the rule, a district 22 court considers three factors: “chronology of the lawsuits, 23 similarity of the parties, and similarity of the issues.” Kohn 24 Law Grp., Inc. v. Auto Parts Mfg. Miss., Inc., 787 F.3d 1237, 25 1240 (9th Cir. 2015). “When applying the first-to-file rule, 26 courts should be driven to maximize ‘economy, consistency, and 27 comity.’” Id. (quoting Cadle Co. v. Whataburger of Alice, Inc., 28 174 F.3d 599, 604 (5th Cir. 1999)). 1 The first-to-file rule “is not a rigid or inflexible 2 rule to be mechanically applied, but rather is to be applied with 3 a view to the dictates of sound judicial administration.” 4 Pacesetter Sys. Inc. v. Medtronic, Inc., 678 F.2d 93, 95 (9th 5 Cir. 1982). “District court judges can, in the exercise of their 6 discretion, dispense with the first-filed principle for reasons 7 of equity.” Alltrade, Inc. v. Uniweld Prods., Inc., 946 F.2d 8 622, 628 (9th Cir. 1991). “The circumstances under which an 9 exception to the first-to-file rule typically will be made 10 include bad faith, anticipatory suit, and forum shopping.” Id. 11 III. Discussion 12 It is undisputed that the Waggener case was filed prior 13 to the instant case. (See Docket No. 11 at 3.) The dispute here 14 is whether the parties and issues in both actions are 15 sufficiently similar to satisfy the first-to-file rule’s 16 remaining factors. (See id.) 17 A. Similarity of Parties 18 The first-to-file rule does not require exact identity 19 of parties, “only substantial similarity.” See Kohn Law Group, 20 Inc. v. Auto Parts Mfg. Mississippi, Inc., 787 F.3d 1237, 1240. 21 In putative class actions, the classes are compared rather than 22 the named plaintiffs. See Bates-Ferreira v. Swedish Match North 23 America, LLC, No. 2:24-cv-00987 TLN CKD, 2025 WL 950506, at *3 24 (E.D. Cal. Mar. 28, 2025) (citing Pedro v. Millenium Prods., 25 Inc., No. 15-cv-05253 MMC, 2016 WL 3029681, at *3 (N.D. Cal. May 26 26, 2016)). “[P]roposed classes in class action lawsuits are 27 substantially similar where both classes seek to represent at 28 least some of the same individuals.” Wallerstein v. Dole Fresh 1 Vegetables, Inc., 967 F. Supp. 2d 1289, 1296 (N.D. Cal. 2013). 2 The class in the Waggener complaint is comprised of 3 “[a]ll United States residents who purchased Mondelez Products 4 marked with the ‘Cocoa Life’ seal . . . ‘100% sustainable’ . . . 5 or any other sustainability claims within the United States 6 during the four-year period” preceding the filing of the 7 complaint. (Docket No. 9-8 ¶ 63.) Plaintiff seeks to represent 8 “[a]ll persons who, while in the state of California and within 9 the applicable statute of limitations period, purchased one of 10 more of the [OREO products].” (Compl. ¶ 50.)1 11 The classes here are substantially similar. The 12 Waggener plaintiff seeks to represent a nationwide class of which 13 individuals in plaintiff’s statewide class are members; the 14 former encompasses the latter. Both classes assert claims on 15 behalf of consumers in the United States who purchased OREO 16 cookies in an overlapping timeframe. The claims are asserted 17 against a parent company in one case, and its subsidiary in the 18 other. Both classes clearly seek to represent at least some of 19 the same individuals, and plaintiff’s choice to sue MII’s 20 subsidiary instead of MII directly does not defeat substantial 21 similarity.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 ----oo0oo---- 11 12 JEREMIAH PEARSON, individually No. 2:25-cv-01270 WBS SCR and on behalf of all others 13 similarly situated, 14 Plaintiff, MEMORANDUM AND ORDER RE: DEFENDANT MONDELEZ GLOBAL 15 v. LLC’S MOTION TO STAY OR TRANSFER VENUE 16 MONDELEZ GLOBAL LLC, 17 Defendant. 18 19 ----oo0oo---- 20 Plaintiff Jeremiah Pearson brought this putative class 21 action against defendant Mondelez Global LLC, claiming consumer 22 protection and contract law violations in connection with an 23 allegedly deceptive label on defendant’s product. (See Compl. 24 (Docket No. 1) ¶¶ 1-5.) Defendant now moves to stay under the 25 first-to-file rule on the grounds that plaintiff’s action mirrors 26 another consolidated class action currently pending in the 27 Northern District of Illinois. (See Docket No. 9 at 1-2.) 28 1 Defendant requests in the alternative to transfer venue pursuant 2 to 28 U.S.C. § 1404(a). (See id.) 3 I. Factual and Procedural Background 4 Defendant is a subsidiary of Mondelez International, 5 Inc. (“MII”), one of the largest snack food and chocolate 6 companies in the world. (See Docket No. 9-8 ¶ 1.) One of MII’s 7 products is OREO cookies, which defendant is “responsible for 8 manufacturing, distributing, and marketing” within the United 9 States. (Docket No. 9 at 8.) 10 A label on OREO products states the cookies are made 11 with “100% Sustainably Sourced Cocoa.” (Compl. ¶¶ 1-2.) The 12 label is accompanied by defendant’s “Cocoa Life” logo, which 13 refers to their “global cocoa ‘sustainability’ program, designed 14 to ‘make cocoa right’” by attempting to mitigate the humanitarian 15 and environmental harms wrought by the cocoa industry. (Id. ¶¶ 16 17-18.) 17 Plaintiff alleges this label is false, because 18 “[d]efendant uses an accounting method called ‘mass balance,’” 19 which “allows [d]efendant to mix cocoa beans from Cocoa Life 20 farms with non-certified cocoa beans from other farms.” (Id. ¶¶ 21 19-20.) Such allegedly mixed sourcing results in cookies with an 22 “uncertain composition.” (Id. ¶ 7.) 23 This class action was preceded by two others with which 24 it shares a factual background. (See Docket No. 9-2 ¶¶ 2-3.) 25 The first was filed in the Northern District of California by 26 Megan Waggener against MII, the second in the Northern District 27 of Illinois by Tim Gollogly, also against MII. (See id. ¶¶ 2-3.) 28 Judge Martínez-Olguín of the Northern District of California 1 granted MII’s request to transfer the Waggener action to the 2 Northern District of Illinois, and thereafter the cases were 3 consolidated. (See Docket No. 9 at 4.) 4 The consolidated class action complaint (“the Waggener 5 complaint”) also claims the OREO label is false. (See Docket No. 6 9-8 ¶ 4.) The Waggener complaint -- like plaintiff’s –- takes 7 issue with mixed cocoa sourcing, but Waggener’s primary grievance 8 appears to be with the unethical consequences of that practice 9 rather than the resulting uncertainty in product composition. 10 (See Docket No. 9-8 ¶ 4.) 11 II. Legal Standard 12 The first-to-file rule is “a judicially created 13 doctrine of federal comity, which applies when two cases 14 involving substantially similar issues and parties have been 15 filed in different districts.” In re Bozic, 888 F.3d 1048, 1051 16 (9th Cir. 2018) (internal quotation marks and citations omitted). 17 “Under that rule, the second district court has the discretion to 18 transfer, stay, or dismiss the second case in the interest of 19 efficiency and judicial economy.” Id. at 1051-52 (internal 20 quotation marks and citation omitted). 21 To determine whether to apply the rule, a district 22 court considers three factors: “chronology of the lawsuits, 23 similarity of the parties, and similarity of the issues.” Kohn 24 Law Grp., Inc. v. Auto Parts Mfg. Miss., Inc., 787 F.3d 1237, 25 1240 (9th Cir. 2015). “When applying the first-to-file rule, 26 courts should be driven to maximize ‘economy, consistency, and 27 comity.’” Id. (quoting Cadle Co. v. Whataburger of Alice, Inc., 28 174 F.3d 599, 604 (5th Cir. 1999)). 1 The first-to-file rule “is not a rigid or inflexible 2 rule to be mechanically applied, but rather is to be applied with 3 a view to the dictates of sound judicial administration.” 4 Pacesetter Sys. Inc. v. Medtronic, Inc., 678 F.2d 93, 95 (9th 5 Cir. 1982). “District court judges can, in the exercise of their 6 discretion, dispense with the first-filed principle for reasons 7 of equity.” Alltrade, Inc. v. Uniweld Prods., Inc., 946 F.2d 8 622, 628 (9th Cir. 1991). “The circumstances under which an 9 exception to the first-to-file rule typically will be made 10 include bad faith, anticipatory suit, and forum shopping.” Id. 11 III. Discussion 12 It is undisputed that the Waggener case was filed prior 13 to the instant case. (See Docket No. 11 at 3.) The dispute here 14 is whether the parties and issues in both actions are 15 sufficiently similar to satisfy the first-to-file rule’s 16 remaining factors. (See id.) 17 A. Similarity of Parties 18 The first-to-file rule does not require exact identity 19 of parties, “only substantial similarity.” See Kohn Law Group, 20 Inc. v. Auto Parts Mfg. Mississippi, Inc., 787 F.3d 1237, 1240. 21 In putative class actions, the classes are compared rather than 22 the named plaintiffs. See Bates-Ferreira v. Swedish Match North 23 America, LLC, No. 2:24-cv-00987 TLN CKD, 2025 WL 950506, at *3 24 (E.D. Cal. Mar. 28, 2025) (citing Pedro v. Millenium Prods., 25 Inc., No. 15-cv-05253 MMC, 2016 WL 3029681, at *3 (N.D. Cal. May 26 26, 2016)). “[P]roposed classes in class action lawsuits are 27 substantially similar where both classes seek to represent at 28 least some of the same individuals.” Wallerstein v. Dole Fresh 1 Vegetables, Inc., 967 F. Supp. 2d 1289, 1296 (N.D. Cal. 2013). 2 The class in the Waggener complaint is comprised of 3 “[a]ll United States residents who purchased Mondelez Products 4 marked with the ‘Cocoa Life’ seal . . . ‘100% sustainable’ . . . 5 or any other sustainability claims within the United States 6 during the four-year period” preceding the filing of the 7 complaint. (Docket No. 9-8 ¶ 63.) Plaintiff seeks to represent 8 “[a]ll persons who, while in the state of California and within 9 the applicable statute of limitations period, purchased one of 10 more of the [OREO products].” (Compl. ¶ 50.)1 11 The classes here are substantially similar. The 12 Waggener plaintiff seeks to represent a nationwide class of which 13 individuals in plaintiff’s statewide class are members; the 14 former encompasses the latter. Both classes assert claims on 15 behalf of consumers in the United States who purchased OREO 16 cookies in an overlapping timeframe. The claims are asserted 17 against a parent company in one case, and its subsidiary in the 18 other. Both classes clearly seek to represent at least some of 19 the same individuals, and plaintiff’s choice to sue MII’s 20 subsidiary instead of MII directly does not defeat substantial 21 similarity. See Kohn, 787 F.3d at 1240 (finding the parties were 22 substantially similar even though the defendant in one case was 23 not a named party in the other case); see also Adoma v. 24 University of Phoenix, Inc., 711 F. Supp. 2d 1142, 1148 (E.D. 25 Cal. 2010) (“[T]he proposed classes for the collective actions 26 1 Although there are are references to consumer reliance 27 in both plaintiff’s complaint in this action and the Waggener complaint (See Compl. ¶ 9; Waggener Compl. ¶ 61.), reliance is 28 not part of either cases’ class definitions. 1 are substantially similar in that both classes seek to represent 2 at least some of the same individuals.”). 3 B. Similarity of Issues 4 As with parties, “the issues in two actions need not be 5 identical . . . only ‘substantially similar.’” Id. (citing 6 Inherent.com v. Martindale-Hubbell, 420 F. Supp. 2d 1093, 1097 7 (N.D. Cal. 2006)). “When analyzing whether issues are 8 substantially similar, a court considers if the common facts, 9 taken together, would lead to the same central question between 10 the cases.” Bates-Ferreira, 2025 WL 950506, at *4 (citing Adoma, 11 711 F. Supp. 2d at 1148). 12 Plaintiff contends the issues between the cases are 13 distinct because the Waggener complaint “challenges the alleged 14 unsustainability of Defendant’s cocoa sourcing,” whereas 15 plaintiff in this case is not concerned with sustainability, only 16 whether defendant’s cocoa is sourced entirely from the Cocoa Life 17 program. (Docket No. 11 at 4.) 18 As a preliminary matter, this denial of any interest in 19 sustainability in this case is belied by plaintiff’s complaint, 20 in which variations of the term “sustainable” are used forty-five 21 times, often to describe the Cocoa Life program or to 22 characterize consumer deception. (See Compl. ¶¶ 4-7, 9, 17, 27, 23 30, 34, 36, 38, 67.) The complaint also accuses defendant of 24 “‘greenwashing,’ deceptively marketing a product as having a 25 sustainable composition it does not possess,” again indicating a 26 concern with ethical production rather than strictly product 27 composition. (Id. ¶ 34.) The issue of sustainability permeates 28 plaintiff’s complaint in this case, suggesting the sort of 1 “substantial overlap” of factual issues to support a finding of 2 substantial similarity.2 See Kohn, 787 F.3d at 1247. 3 But the decisive problem for plaintiff is that his case 4 shares a central question with Waggener: both parties want to 5 know how MII sources its cocoa. To that end, both actions bring 6 claims for violations of the California Consumers Legal Remedies 7 Act, California Unfair Competition Law, and unjust enrichment. 8 (See Docket No. 9 at 9.) Regardless of the underlying motives 9 for these claims, litigating them will undoubtedly involve 10 similar discovery, similar witnesses, and similar motion practice 11 to determine what is ultimately critical to their determinations: 12 whether MII’s “100% Sustainably Sourced Cocoa” label is 13 deceptive. A fabricated difference in the reasons for asking 14 that question does not undermine the fundamental similarity in 15 the methods for answering it. 16 At oral argument plaintiff emphatically cited Hernandez 17 v. Event Tickets Ctr., Inc. for the proposition that two cases 18 with differing deceptions cannot be substantially similar. No. 19 2:24-cv-01983 DAD AC, 2025 WL 1067714, at *3 (E.D. Cal. Apr. 9, 20 2025). But the deceptions in Hernandez were substantively 21 distinct, as the cases involved an omission regarding pricing on 22 the one hand, and affirmative misrepresentations regarding venue 23
24 2 It is worth noting that the plaintiff in Waggener submitted an opposition to defendant’s motion to dismiss in which 25 she alleged “Mondelez does not claim, nor can it plausibly suggest, that cocoa harvested with child labor is segregated from 26 other inputs.” (Docket No. 13-2 at 16.) This language targets 27 MII’s supply chain, rather than sustainability more generally, and aligns the Waggener case even more closely with plaintiff’s 28 case here. 1 and inventory on the other. Id. The language, subject matter, 2 and aim of the alleged deceptions differed. Id. That is not the 3 case here: these actions focus on the same language, written on 4 the same label, invoking the same subject matter, and promoting 5 the same product. 6 This action is not the first-filed action and the 7 parties and the issues in plaintiff’s case are substantially 8 similar to those in the Waggener case. Accordingly, the first- 9 to-file rule applies. 10 IV. Staying or Transferring the Action 11 Defendant’s first-to-file analysis underlies their 12 request for a stay. However, they go on to state in the 13 alternative that “even if the court were not inclined to stay or 14 dismiss this case under the ‘first-to-file’ rule, it should 15 transfer the case” pursuant to 28 U.S.C. § 1404(a). (Docket No. 16 9 at 10.) 17 The first-to-file rule provides independent discretion 18 for transfer, and “§ 1404(a) cabin[s] the exercise of that 19 discretion” only in that the transferee venue must be proper. 20 See Bozic, 888 F.3d at 1054 (a district court relying solely on 21 first-to-file in transferring “could only transfer [the] action 22 to a district ‘where it might have been brought’”). The other 23 factors of § 1404(a) may also be considered, but they are not 24 strictly required to justify transfer when first-to-file applies. 25 See Pacesetter Systems, Inc. v. Medtronic, Inc., 678 F.2d 93, 96 26 (9th Cir. 1982) (“In appropriate cases it would be relevant for 27 the court in the second-filed action to give consideration to the 28 convenience of the parties and witnesses.”). 1 Plaintiff does not dispute this action “might have been 2 brought” in the Northern District of Illinois, nor could he; 3 defendant is headquartered there, and personal jurisdiction and 4 venue are “unquestionably proper.” (Docket No. 9 at 11.) 5 The other class actions have already been consolidated 6 in Illinois, an interim class counsel has been appointed, and a 7 motion is currently pending there dealing with many of the same 8 issues presented by this case. (See Docket No. 11 at 4.) Merely 9 pausing plaintiff’s action while Waggener proceeds in Illinois 10 would segregate the parallel cases, creating a likelihood of 11 duplicative, cross-country litigation. As Judge Martínez-Olguín 12 noted in her order transferring the original Waggener action, the 13 Northern District of Illinois is also the case’s “‘center of 14 gravity’ -- where the key witnesses and documents are located,” 15 so transfer promises an “overall reduction of litigation costs.” 16 van Meter v. Mondelez International, Inc., No. 24-cv-00564 AMO, 17 2025 WL 875391, at *3 (N.D. Cal. Mar. 18, 2025). 18 Based on the foregoing, the first-to-file factors weigh 19 in favor of transfer to the Northern District of Illinois, where 20 venue is proper and where the likelihood of consolidation 21 supports judicial economy. Accordingly, the case will be 22 transferred to that district. 23 IT IS THEREFORE ORDERED that defendant’s motion to 24 transfer venue (Docket No. ) be, and the same hereby, is 9 25 GRANTED. This action is hereby TRANSFERRED to the Northern 26 District of Illinois for all further proceedings. The Clerk of 27 28 1 this court is instructed to close this case after transfer is 2 | complete.? . - 3 | Dated: September 4, 2025 bitte A habe WILLIAM B. SHUBB 4 UNITED STATES DISTRICT JUDGE 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 |. 3 Transfer being granted, defendant’s motion to stay is 28 | DENIED as moot. 10