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Sandy Smith, et al v. Merial Limited

June 5, 2012

SANDY SMITH, ET AL., PLAINTIFFS,
v.
MERIAL LIMITED, DEFENDANT.
BRIAN MCDONOUGH, ET AL., PLAINTIFFS,
v.
BAYER HEALTHCARE, LLC, DEFENDANT.
AUNDRIA ARLANDSON, ET AL., PLAINTIFFS,
v.
HARTZ MOUNTAIN CORPORATION, ET AL., DEFENDANTS.
KRISTY SYNDER, ET AL., PLAINTIFFS,
v.
FARNAM COMPANIES, INC., ET AL., DEFENDANTS.
SUNNY JOHANSSON, ET AL., PLAINTIFFS,
v.
CENTRAL GARDEN & PET COMPANY, ET AL., DEFENDANTS.
LYNDA FROST, ET AL., PLAINTIFFS,
v.
FIDOPHARM, INC., ET AL., DEFENDANTS.



The opinion of the court was delivered by: Hon. William J. Martini

CONSOLIDATED OPINION & ORDER

WILLIAM J. MARTINI, U.S.D.J.:

Presently before the Court are six putative class actions which are collectively known as the Flea and Tick cases. In each action, a group of plaintiffs residing in multiple states allege that their pets were harmed by the chemicals in various "spot-on" flea and tick prevention products manufactured and/or sold by defendants, in spite of clear indications that those products posed a risk of harm to the animals. All plaintiffs are represented by the same group of attorneys.*fn1 Although there is at least one motion to dismiss pending in each matter, because ruling on several issues common to all six matters may advance the ultimate resolution of these cases, and in light of the motions to strike plaintiffs' class claims which several defendants' contemporaneously filed with their motions to dismiss,*fn2 the Court will require additional briefing on several issues germane to class certification prior to ruling on the outstanding motions to dismiss. In re Hydrogen Peroxide Antitrust Litigation, 552 F.3d 305, 309 (3d Cir. 2009) ("[t]he trial court . . . possesses broad discretion to control proceedings and frame [class certification] issues"); Fed. R. Civ. P. 42(a)(3) ("[i]f actions before the court involve a common question of law or fact, the court may . . . issue any other orders to avoid unnecessary cost or delay").

In doing so, the Court will first review: (1) the claims asserted in the Flea and Tick cases prior to the May 26, 2011, (2) the central holdings of the Court's May 26, 2011 Opinions and Orders, (3) the claims currently asserted by the Flea and Tick plaintiffs, which have been pled in accordance with the Court's May 26, 2011 rulings, and (4) the class certification requirements of Fed. R. Civ. P. 23.

1.The Flea and Tick Pleadings Prior to the Court's May 26, 2011 Rulings

The Flea and Tick cases, which remain at the pre-answer stage of litigation, are not newly before this Court.*fn3 In the prior pleadings in Smith, McDonough, and Arlandson, and Snyder, which were all originally filed in the District of New Jersey (the "District of New Jersey Cases"), all plaintiffs sought relief under the same four causes of action: (1) breach of express warranty, (2) breach of implied warranty, (3) unjust enrichment, and (4) violation of New Jersey's Consumer Fraud Act ("CFA"), N.J.S.A. § 56:8-1, et seq.*fn4

In the prior pleading in Johansson, which was originally filed in the Northern District of California and subsequently transferred to this Court, plaintiffs asserted causes of action for (1) violation of the California Unfair Competition Law, Cal. Bus. & Prof. Code § 17200, et seq., (2) breach of implied warranty of merchantability, (3) violation of the Magnuson-Moss Warranty Act, 15 U.S.C. § 2310(d)(1), (4) strict products liability, (5) violation of the California Consumer Legal Remedies Act, Cal Civ. Code § 1770(a), and (6) punitive damages, Cal. Civ. Code § 3345.

2.The Court's May 26, 2011 Flea and Tick Rulings

On May 26, 2011, this Court issued five parallel Opinions and Orders ("Parallel Opinions") regarding the then-pending motions to dismiss separately filed in Smith, McDonough, Arlandson, Snyder and, Johansson. Although each Parallel Opinion was tailored to address particular facts alleged in each case, the Court's rulings are consistent.*fn5

First, the Court ruled that plaintiffs' claims are not pre-empted by the Federal Insecticide, Fungicide, and Rodentcide Act, 7 U.S.C. § 136 ("FIFRA").*fn6 (Arlandson Op. at 13-14, ECF No. 77.) Second, the Court dismissed plaintiffs' New Jersey CFA claim after ruling that New Jersey's Products Liability Act ("PLA") -- and not its CFA -- is the governing statute for the harm caused to plaintiffs' pets by defendants' products. (Id. at 16 (citing N.J.S.A. § 2A:58C-1(b)(3)).) Accordingly, any plaintiff entitled to seek relief under New Jersey law had to amend his pleading to assert a claim under New Jersey's PLA (the "CFA/PLA Claim"). Third, the Court made several choice of law determinations in the District of New Jersey Cases that adversely affect the likelihood of class certification in these cases.

i.Choice of Law Generally

Because plaintiffs' claims arise under state law, the Court will eventually have to determine which states' laws govern all of plaintiffs' claims, on an issue-by-issue basis. In reaching this decision, the Court must first determine if there is an actual conflict between states' laws. If there is no conflict, the law of the forum state applies. However, if there is a conflict, the Court must then determine which state's law applies to each claim asserted by plaintiffs, based on the specific choice of law test of the forum where the action was initiated. (Arlandson Op. at 9-11.)

ii.Choice of Law in Smith, McDonough, Arlandson and Snyder

While the Court has not yet made choice of law determinations on a number of plaintiffs' claims, in the four District of New Jersey cases, the Court made choice of law rulings on plaintiffs' CFA/PLA and unjust enrichment claims.

In those four cases, after applying New Jersey's "most significant relationship" choice of law test, the Court determined first, that as to plaintiffs' CFA/PLA claim, nonNew Jersey plaintiffs could not seek relief under New Jersey's CFA or its PLA, and would have to amend their pleadings to instead plead those claims under their own states' products liability and/or consumer fraud statutes. (Arlandson Op. at 15, ...


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