Pickering v. A.L.S. (In re Activated Carbon–Based Hunting Clothing Mktg. & Sales Practices Litig.)

• Decision Date: 10 January 2012
• Docket Number: Multidistrict Litigation No. 09–md–2059 (RHK/JJK).
• Citation: 840 F.Supp.2d 1193
• Parties: In re ACTIVATED CARBON–BASED HUNTING CLOTHING MARKETING AND SALES PRACTICES LITIGATION. This Document Relates To: Pickering v. A.L.S. Enterprises, Inc., et al., Civ. No. 09–1603 (RHK/JJK). Dorris v. A.L.S. Enterprises, Inc., et al., Civ. No. 09–1609 (RHK/JJK). Pemberton v. A.L.S. Enterprises, Inc., et al., Civ. No. 09–2059 (RHK/JJK). Beld v. A.L.S. Enterprises, Inc., et al., Civ. No. 09–1611 (RHK/JJK). Lange v. A.L.S. Enterprises, Inc., et al., Civ. No. 09–1805 (RHK/JJK). Cook v. A.L.S. Enterprises, Inc., et al., Civ. No. 09–1806 (RHK/JJK). Super v. A.L.S. Enterprises, Inc., et al., Civ. No. 09–2036 (RHK/JJK).
• Court: U.S. District Court — District of Minnesota

840 F.Supp.2d 1193

In re ACTIVATED CARBON–BASED HUNTING CLOTHING MARKETING AND SALES PRACTICES LITIGATION.

This Document Relates To:

Pickering

v.A.L.S. Enterprises, Inc., et al., Civ. No. 09–1603 (RHK/JJK).

Dorris

v.A.L.S. Enterprises, Inc., et al., Civ. No. 09–1609 (RHK/JJK).

Pemberton

v.A.L.S. Enterprises, Inc., et al., Civ. No. 09–2059 (RHK/JJK).

Beld

v.A.L.S. Enterprises, Inc., et al., Civ. No. 09–1611 (RHK/JJK).

Lange

v.A.L.S. Enterprises, Inc., et al., Civ. No. 09–1805 (RHK/JJK).

Cook

v.A.L.S. Enterprises, Inc., et al., Civ. No. 09–1806 (RHK/JJK).

Super

v.A.L.S. Enterprises, Inc., et al., Civ. No. 09–2036 (RHK/JJK).

Multidistrict Litigation No. 09–md–2059 (RHK/JJK).

United States District Court,

D. Minnesota.

Jan. 10, 2012.

Ernest W. Grumbles, III, Adams Monahan LLP, Renae D. Steiner Heins Mills & Olson, PLC Thomas J. Leach, III Vincent J. Esades Merchant & Gould PC Minneapolis, MN, for Plaintiffs.

John D. Sear, Michael R. Carey, Bowman & Brooke LLP, Minneapolis, MN, Michael D. Leffel, Naikang Tsao, Stephan J. Nickels, Theresa A. Andre, Foley & Lardner LLP, Madison, WI, for Defendants.

SUGGESTION OF REMAND

RICHARD H. KYLE, District Judge.

These matters are before the Court sua sponte.

What began more than four years ago as a relatively straight-forward Minnesota consumer-fraud case in this Court slowly morphed into the instant nine-case, multi-district litigation (“MDL”) involving claims under the laws of Minnesota, Indiana, Wisconsin, Illinois, New York, Florida, California, Maryland, and Michigan.¹ The Court concludes the time has now come for these actions to go their separate ways, and hence it suggests that the Judicial Panel on Multidistrict Litigation (“JPML”) remand each of the above actions to its court of origin. To explain why the Court has reached this conclusion, a recitation of where these matters currently stand, and how they got here, is first in order.

BACKGROUND

I. The initial action is filed

In September 2007, an action styled Theodore Robert Carlson, et al. v. A.L.S. Enterprises, Inc., et al., Civ. No. 07–3970, was filed in this Court. The thrust of the plaintiffs' claims was that defendant A.L.S. Enterprises, Inc. (“ALS”) and several of its licensees (the remaining defendants) made false and inaccurate representations when marketing and selling hunting clothing embedded with “Scent–Lok,” an activated-carbon product design to mask human odors. The named plaintiffs, who purported to represent a class of similarly situated Minnesota residents, asserted claims under three Minnesota statutes ² as well as a claim for civil conspiracy among the defendants. The defendants filed Motionsto Dismiss that were granted in January 2008, with the Court affording the plaintiffs leave to amend.

An Amended Complaint was filed in short order, which (among other things) dropped Carlson as a plaintiff and provided more detail about the nature of the plaintiffs' claims. (The case thereafter became known as “ Buetow,” the surname of the lead remaining plaintiff.) The plaintiffs asserted the same four claims in their Amended Complaint as in their initial Complaint, and they continued to purport to represent a class of Minnesota residents who had purchased Scent–Lok products. The defendants again moved to dismiss (in whole or in part), and those motions were partially granted on May 5, 2008; the Court determined that the plaintiffs' civil-conspiracy claim must be dismissed and that certain defendants should be dropped from the case, but the Amended Complaint otherwise sufficed to plead claims under the statutes at issue.

Buetow then proceeded with discovery, with the Magistrate Judge ³ initially setting a discovery deadline of August 17, 2009. Over the better part of a year, several discovery Motions were filed, argued, and decided, and the plaintiffs filed a Second Amended Complaint, although the nature of their claims did not change. In November 2008, the plaintiffs filed a Motion for Class Certification, which was fully (and extensively) briefed as of March 2009.

II. Additional actions are filed and consolidated by the JPML

Meanwhile, on April 14, 2008, an action styled Scott Dorris, et al. v. A, L.S. Enterprises, Inc., et al., No. 08–cv–2118, had been filed in the United States District Court for the Northern District of Illinois. The tenor of the claims in Dorris were the same as those in Buetow—false or misleading representations in the marketing and sale of Scent–Lok products—but the Dorris plaintiffs asserted claims under Illinois consumer-protection statutes, as well as a claim for civil conspiracy. Save for local counsel, the attorneys representing the plaintiffs in Buetow and Dorris were the same. In early 2009, additional cases were filed in federal courts in Wisconsin ( Beld ), Indiana ( Pemberton ), and Florida ( Pickering ), asserting similar claims under those states' laws; the plaintiffs in those actions also were represented by the same counsel as in Buetow and Dorris.

On March 31, 2009, the plaintiffs in these cases (and Buetow ) moved the JPML to consolidate all of the actions in one court for coordinated pretrial proceedings, pursuant to 28 U.S.C. § 1407. While recognizing that there were “certain issues of state law [that] may be unique to each case,” the plaintiffs asserted that the interests of justice and the convenience of the parties and witnesses would best be served by consolidation, primarily because discovery could be “taken once and used in each” remaining case. ( Buetow Doc. No. 195–1 at 11–12.) The defendants agreed that multi-district proceedings were appropriate, but they asked the JPML to exclude Buetow from consolidation because it was more procedurally advanced than the remaining cases (many of which had just been filed). By Order dated June 18, 2009, the JPML rejected that argument and consolidated all of the then-pending actions (including Buetow ) in this Court “for coordinated or consolidated pretrial proceedings.” ⁴ An additional “tag-along” action filed in federal court in Michigan ( Super ) was later transferred here, as well. (Together, all of these actions except Buetow are referred to hereinafter collectively as the “Related Actions.”) ⁵

III. The actions progress

After the JPML issued its consolidation Order, this Court denied the class-certification Motion in Buetow. It noted that too many issues, such as reliance, damages, and the statute of limitations, were subject to individualized inquiry to justify certifying a class. It pointed out, for example, that although the plaintiffs “claim to have relied upon statements from the [d]efendants in making their purchases, the ... [p]laintiffs also relied on a variety of other materials and recommendations,” leaving the defendants' potential liability “dominated by individual issues of causation and reliance.” It also noted that “detailed and individual factual inquiries” would be required to determine each plaintiff's potential damages. The plaintiffs sought leave to take an interlocutory appeal, but their request was denied by the Eighth Circuit on September 9, 2009.

While the class-certification issue was being resolved in Buetow, pretrial proceedings commenced in the Related Actions. The undersigned and the Magistrate Judge jointly issued a Pretrial Scheduling Order (MDL Doc. 15) appointing lead counsel for the plaintiffs; rejecting a request to file a Master Complaint in the Related Actions, as it would “not aid in the efficient administration of” those cases; and setting deadlines for class certification (April 1, 2010) and discovery (June 1, 2010).⁶ The Pretrial Scheduling Order also carried over the existing Protective Order from Buetow and expressly provided that all “[d]iscovery material from [ Buetow ] may be used in any of the [Related] Actions.” ( Id. at 10.)

Meanwhile, discovery was completed in Buetow and the parties cross-moved for summary judgment in that case. The Court heard oral argument on those Motions on October 30, 2009, but temporarily (and informally) held them—and the Motions to Dismiss the Related Actions—in abeyance while the Magistrate Judge attempted to settle all of these actions. Despite those efforts, a settlement was not in the offing.⁷ With no settlement reached, on May 13, 2010, the Court granted in part and denied in part the parties' cross-Motions for summary judgment in Buetow. The Court held that the plaintiffs were entitled to relief on certain of their claims because some of the defendants' advertisements—namely, those claiming that Scent–Lok products “can ‘eliminate’ odor”—were literally false. The Court issued a permanent injunction enjoining the use of such literally false claims in the defendants' advertising and marketing materials, and the defendants appealed both the summary-judgment ruling and Order granting injunctive relief to the Eighth Circuit.

IV. Discovery is completed in the Related Actions and Buetow is reversed

In July 2010, the plaintiffs in each of the Related Actions moved for class certification.Like the Motions to Dismiss, these Motions also raised several unique questions of state law. Shortly thereafter, on August 1, 2010, the discovery period ended in the Related Actions. And on September 29, 2010, 2010 WL 3893807 the Court denied the class-certification Motions in those cases.

In the interim, on September 20, 2010, the parties cross-moved for summary judgment in the Related Actions. After submitting their opening briefs, however, the parties stipulated to stay those cases pending disposition of the appeal in Buetow. The Court approved that stipulation and stayed the Related Actions on September 29, 2010.

On August 18, 2011, the Eighth Circuit reversed this Court's summary-judgment Order in Buetow and vacated the permanent injunction. See Buetow v. A.L.S. Enters., Inc., 650 F.3d 1178 (8th Cir.2011). The Court of Appeals determined that this Court's finding of literal falsity was erroneous because an advertisement, in order to be unlawful, must be...