Opinion
MDL No. 2232.
2011-04-8
IN RE: POWER BALANCE, LLC, MARKETING AND SALES PRACTICES LITIGATION.
Before JOHN G. HEYBURN II, Chairman, KATHRYN H. VRATIL, DAVID R. HANSEN, W. ROYAL FURGESON, JR., FRANK C. DAMRELL, JR., BARBARA S. JONES, PAUL J. BARBADORO, Judges of the Panel.
ORDER DENYING TRANSFER
JOHN G. HEYBURN II, Chairman.
Before the Panel: Plaintiffs in the Southern District of Florida action and the Northern District of California action separately move to centralize, pursuant to 28 U.S.C. § 1407, these actions and any later-filed related actions, in the Central District of California. Plaintiffs in one of the three Northern District of Alabama actions also moves for centralization, but suggests the Northern District of Alabama as transferee district. The three motions encompass some or all of the following fifteen actions: ten actions pending in the Central District of California, three actions pending in the Northern District of Alabama, and one action each in the Northern District of California and the Southern District of Florida, as listed on Schedule A.
All but one responding plaintiff agree that centralization is appropriate. Plaintiffs in five of the ten Central District of California actions support centralization in this district, while plaintiff in one Northern District of Alabama action supports centralization there. Plaintiff in one Middle District of Florida related action suggests the Middle District of Florida.
Defendant Power Balance, LLC (Power Balance) along with plaintiff in the first-filed Central District of California action ( Batungbacal ) agree that all actions meet the criteria for centralization, but ask the Panel to defer its ruling in order to allow the Batungbacal presiding judge to consider a recently negotiated nationwide class settlement. If the Panel deems centralization appropriate, however, these parties agree that the Central District of California is the most appropriate transferee district.
On the basis of the papers filed and hearing session held, we will deny the motion. Although these fifteen actions involve common questions of fact arising out of Power Balance's marketing and sale of its holographic products, we find that centralization at this time will not serve the convenience of the parties and witnesses or promote the just and efficient conduct of the litigation. Plaintiff in the Central District of California Batungbacal action recently has moved for preliminary approval of a proposed nationwide class settlement. At oral argument, both plaintiff and Power Balance assured the Panel that all interested parties were welcome to intervene in Batungbacal for the purpose of raising issues related to the adequacy of the proposed settlement. A hearing on plaintiff's motion for preliminary approval is set for April 25, 2011, before Judge Cormac J. Carney. If Judge Carney preliminarily approves the settlement, these cases are likely on the path to resolution. Centralization at this time could delay the Batungbacal proceedings as well as entail additional expense for the litigants and the courts to establish an MDL proceeding with little benefit.
IT IS THEREFORE ORDERED that the motion, pursuant to 28 U.S.C. § 1407, for centralization of these actions is denied.
SCHEDULE A
MDL No. 2232 — IN RE: POWER BALANCE, LLC, MARKETING AND SALES PRACTICES LITIGATION
Northern District of Alabama
Trent Davidson v. Power Balance, LLC, C.A. No. 2:11–00288
Richard Bowlin v. Power Balance, LLC, C.A. No. 2:11–00351
Ray Keller, et al. v. Power Balance, LLC, C.A. No. 5:11–00243 Central District of California
Brian Casserly v. Power Balance, LLC, et al., C.A. No. 2:11–00670
Andre Batungbacal v. Power Balance, LLC, et al., C.A. No. 8:11–00018
Devin Clemence v. Power Balance, LLC, C.A. No. 8:11–00025
Christopher Greene v. Power Balance, LLC, et al., C.A. No. 8:11–00049
Whitney Ghodsian v. Power Balance, LLC, et al., C.A. No. 8:11–00075
Joon Khang v. Power Balance, LLC, et al., C.A. No. 8:11–00145
Ian Delizo v. Power Balance, LLC, et al., C.A. No. 8:11–00151
Willy Granados, et al. v. Power Balance, LLC, et al., C.A. No. 8:11–00191
Henry Diaz v. Power Balance, LLC, C.A. No. 8:11–00205
Kenneth Whiting v. Power Balance, LLC, et al., C.A. No. 8:11–00213 Northern District of California
C.F.C., a minor, by and through Christine F., his parent and guardian v. Power Balance, LLC, C.A. No. 3:11–00487 Southern District of Florida
Eric Intihar v. Power Balance, LLC, C.A. No. 0:11–60049