IN RE: NBTY, Inc., Ginkgo Biloba Marketing and Sales Practices Litigation

UNITED STATES JUDICIAL PANEL
on
MULTIDISTRICT LITIGATION
IN RE: NBTY, INC., GINKGO BILOBA MARKETING
AND SALES PRACTICES LITIGATION MDL No. 2608
ORDER DENYING TRANSFER
Before the Panel: Defendants NBTY, Inc.; Natures Bounty, Inc.; Rexall Sundown, Inc.; and
Costco Wholesale Corp. move under 28 U.S.C. § 1407 to centralize pretrial proceedings in this
litigation in the Southern District of California. Plaintiff in the Northern District of California action1
supports defendants’ motion. This litigation consists of three actions pending in the Southern
District of California and the Northern District of California, as listed on Schedule A.
On the basis of the papers filed and the hearing session held, we conclude that centralization
of this litigation is not necessary to serve the convenience of the parties and witnesses or further the
just and efficient conduct of this litigation. These actions share common factual questions regarding
defendants’ statements about the efficacy of Gingko Biloba. Specifically, plaintiffs challenge
defendants’ statements on the labels of Sundown, TrueNature and Nature’s Bounty supplements that
the products support “healthy brain function” and circulation and help “support memory, especially
occasional mild memory problems associated with aging.” Given the small number of cases in this
litigation and the parties’ willingness to pursue Section 1404 transfer, we are not convinced that
these common issues alone are sufficient to warrant the creation of an MDL.
This litigation involves only three actions in two districts. Where only a minimal number
of actions are involved, the proponent of centralization bears a heavier burden to demonstrate that
centralization is appropriate. See In re: Transocean Ltd. Sec. Litig. (No. II), 753 F. Supp. 2d 1373,
1374 (J.P.M.L. 2010). Moving defendants have failed to meet that burden here. There are
effectively only two actions, given that the Southern District California actions are brought by the
same plaintiff and the same counsel, and the actions are related before a single judge.
Transfer via Section 1404(a) often stands as a viable alternative to centralization. Transfer
under Section 1404 is particularly appropriate here, where the litigation is in its infancy and all
Defendants’ motion originally included an action filed in the Central District of California1
(Wilson) that was dismissed on January 21, 2015; plaintiff in Wilson joined the amended complaint
in the Southern District of California Petkevicius II action. Upon dismissal of Wilson, defendants
amended their motion to add the Northern District of California Korolshteyn action and thus retain
the litigation’s multidistrict character.
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parties are willing to litigate in the Southern District of California. In the three months that this2
motion has been pending, there have been no potential tag-along actions filed, and plaintiff in the
outlying Northern District of California action has responded in support of centralization in the
Southern District of California. At oral argument, the parties expressed their willingness to consent
to Section 1404 transfer to the Southern District of California. In these circumstances, centralization
is unnecessary.
IT IS THEREFORE ORDERED that the motion for centralization of these actions is denied.
PANEL ON MULTIDISTRICT LITIGATION
Sarah S. Vance
Chair
Marjorie O. Rendell Charles R. Breyer
Lewis A. Kaplan Ellen Segal Huvelle
R. David Proctor Catherine D. Perry
See In re: Gerber Probiotic Prods. Mktg. & Sales Practices Litig., 899 F. Supp. 2d 1378,2
1379 (J.P.M.L. 2012) (“The Panel has often stated that centralization under Section 1407 ‘should
be the last solution after considered review of all other options.’”) (quoting In re: Best Buy Co., Inc.,
California Song-Beverly Credit Card Act Litig., 804 F. Supp. 2d 1376, 1378 (J.P.M.L.2011)).
Case MDL No. 2608 Document 22 Filed 04/02/15 Page 2 of 3

IN RE: NBTY, INC., GINKGO BILOBA MARKETING
AND SALES PRACTICES LITIGATION MDL No. 2608
SCHEDULE A
Northern District of California
KOROLSHTEYN v. COSTCO WHOLESALE CORP., C.A. No. 3:14!05447
Southern District of California
PETKEVICIUS v. REXALL SUNDOWN, INC., ET AL., C.A. No. 3:14!02482
PETKEVICIUS v. NBTY, INC., ET AL., C.A. No. 3:14!02616
Case MDL No. 2608 Document 22 Filed 04/02/15 Page 3 of 3