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Liliana Cardenas, An Individual, and Francisco Padilla, An v. Nbty

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


April 29, 2013

LILIANA CARDENAS, AN INDIVIDUAL, AND FRANCISCO PADILLA, AN INDIVIDUAL, ON BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY SITUATED, PLAINTIFFS,
v.
NBTY, INC., A DELAWARE CORPORATION AND REXALL SUNDOWN, INC., A FLORIDA CORPORATION,
DEFENDANTS.

The opinion of the court was delivered by: Judge: Hon. Troy L. Nunley

CLASS ACTION JOINT STIPULATION AND ORDER FOR A STAY OF ALL PROCEEDINGS

Plaintiffs Liliana Cardenas and Francisco Padilla ("Plaintiffs") and Defendants Rexall Sundown, Inc. and NBTY, Inc. (collectively with Plaintiffs, "the Parties"), by and through their undersigned counsel, hereby respectfully submit this joint stipulation for an order staying this action because Plaintiffs' claims and the claims of the purported class they seek to represent have been settled. In support, the Parties state as follows:

WHEREAS, in this matter, Plaintiffs have challenged statements used in the marketing of various Osteo Bi-Flex glucosamine joint health dietary supplement products, which are manufactured and sold by Rexall Sundown, Inc., a subsidiary of NBTY, Inc. (See Third. Am. Compl., Dkt. No. 66.)

WHEREAS, this matter is one of six putative class actions challenging the marketing of glucosamine joint health dietary supplement products manufactured and/or sold by Rexall Sundown, Inc., NBTY, Inc., or their affiliates (collectively, "Rexall"), which are currently pending in five federal district courts throughout the country. The pending cases are: Liliana Cardenas and Francisco Padilla v. NBTY, Inc. and Rexall Sundown, Inc., No. 2:11-CV-01615-TLN-CKD (E.D. Cal. filed June 14, 2011); Jennings v. Rexall Sundown, Inc., No. 1:11-cv-11488-WGY (D. Mass. filed Aug. 22, 2011); Cecilia Linares and Abel Gonzalez v. Costco Wholesale, Inc., No. 3:11-cv-02547-MMA-RBB (S.D. Cal. filed Nov. 2, 2011); Nick Pearson v. Target Corp., No. 1:11-cv-07972 (N.D. Ill. filed Nov. 9, 2011); Randy Nunez v. NBTY, Inc., Arthritis Research Corp., and Nature's Bounty, Inc., No. 3:13-CV-0495 (S.D. Cal. filed Mar. 1, 2013); and Augustina Blanco v. CVS Pharmacy, Inc., No. 5:13-cv-00406-JGB-SP (C.D. Cal. filed Mar. 4, 2013).

WHEREAS, on April 15, 2013, the Parties in this action executed a global, nationwide settlement agreement settling and releasing for consideration, inter alia, all of the claims made in this case. Plaintiff Francisco Padilla has been identified as a class representative on behalf of the settlement class, and Plaintiff Liliana Cardenas is a member of the settling class, which has been defined to include all purchasers of Osteo Bi-Flex products since 2005.

WHEREAS, this settlement will be submitted to the Honorable Judge James B. Zagel in the Northern District of Illinois for preliminary approval. (Judge Zagel is presiding over the Pearson case (N.D. Ill., Case No. 1:11-cv-07972), one of the cases being settled.)

WHEREAS, to facilitate this global, nationwide settlement, Plaintiffs have filed a Second Amended Class Action complaint in the Pearson case on behalf of a nationwide class of all persons in the United States who purchased the products covered by the settlement, which include Osteo Bi-Flex products (Ex. A hereto). Plaintiff Francisco Padilla is a named plaintiff in the Pearson Second Amended Class Action Complaint (id. ¶¶ 15--16); plaintiff Liliana Cardenas is a member of the nationwide class as defined in the Pearson Second Amended Class Action Complaint (id. ¶ 51).

WHEREAS, pursuant to the settlement agreement, Plaintiffs and Rexall are jointly moving for a stay of this case pending final approval of the class action settlement. Similar motions will be filed in the other related cases.

WHEREAS, in light of the settlement, the Parties respectfully request the Court to exercise its inherent authority to stay this action. See, e.g., Landis v. N. Am. Co., 299 U.S. 248, 254 (1936) ("[T]he power to stay proceedings is incidental to the power inherent in every court to control the disposition of the causes on its dockets with economy of time and effort for itself, for counsel, and for litigants."); Lockyer v. Mirant Corp., 398 F.3d 1098, 1109 (9th Cir. 2005) (citing Landis for the proposition that a "district court has discretionary power to stay proceedings in its own court"). A stay is appropriate where, as here, it is efficient to suspend an action pending resolution of proceedings in another jurisdiction that bear upon the case. See, e.g., Sinclair v. Fox Hollow of Turlock Owners Ass'n, No. 1:03-cv-05439, 2011 WL 219924, at *2 (E.D. Cal. Jan. 21, 2011) ("When there is an independent proceeding related to a matter before the trial court, the Ninth Circuit has held that a trial court may 'find it efficient for its own docket and the fairest course for the parties to enter a stay of an action before it, pending resolution of independent proceedings which may bear upon the case.'") (quoting Mediterranean Enters., Inc. v. Ssangyong Corp., 708 F.2d 1458, 1465 (9th Cir. 1983)).

WHEREAS, the proposed stay promotes judicial economy by permitting both the Court and the Parties to suspend their work on this case while the settlement process moves forward in the Northern District of Illinois. When final approval has been given, the settlement requires Plaintiffs to voluntarily dismiss with prejudice this action. Accordingly, entering the proposed stay will conserve the resources of the Court, the litigants, and their counsel.

NOW, THEREFORE, the Parties stipulate as follows:

1. This action shall be stayed pending final approval of the settlement.

The attorney filing this document confirms that all other signatories listed, and on whose behalf the filing is submitted, concur in the filing's content and have authorized the filing.

Dated: April 24, 2013 By: /s/ Patricia N. Syverson BONNETT, FAIRBOURN, FRIEDMAN & BALINT, P.C. Elaine A. Ryan Patricia N. Syverson (203111) Lindsey M. Gomez-Gray 2325 E. Camelback Road, Suite 300 Phoenix, AZ 85016 eryan@bffb.com psyverson@bffb.com lgomez-gray@bffb.com Telephone: (602) 274-1100 BONNETT, FAIRBOURN, FRIEDMAN & BALINT, P.C. Manfred Muecke (222893) 600 W. Broadway, Suite 900 San Diego, California 92101 mmuecke@bffb.com Telephone: (619) 756-7748 STEWART M. WELTMAN LLC Stewart M. Weltman 122 S. Michigan Avenue, Suite 1850 Chicago, IL 60603 sweltman@weltmanlawfirm.com Telephone: (312) 588-5033 (Of Counsel Levin Fishbein Sedran & Berman) LEVIN FISHBEIN SEDRAN & BERMAN Howard J. Sedran 510 Walnut Street Philadelphia, Pennsylvania 19106 hsedran@lfsblaw.com Telephone: (215) 592-1500 Attorneys for Plaintiffs Liliana Cardenas and Francisco Padilla Dated: April 24, 2013 By: /s/ Kara L. McCall Kara L. McCall Christopher M. Gaul One South Dearborn Street Chicago, Illinois 60603 kmccall@sidley.com cgaul@sidley.com Telephone: (312) 853-7000 Attorneys for Defendants NBTY, Inc. and Rexall Sundown, Inc.

IT IS SO ORDERED.

20130429

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