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Daniel Askin, On Behalf of Himself and All Others Similarly v. the Quaker Oats Company

February 15, 2012


The opinion of the court was delivered by: Magistrate Judge Young B. Kim


This suit represents the fourth of five putative class actions brought against The Quaker Oats Company ("Quaker") alleging that Quaker entices consumers to buy certain of its granola and oatmeal products by misleadingly labeling them with phrases such as "heart healthy," "wholesome," and "smart choice made easy." The other four suits were brought in federal court in California and are currently proceeding there as one consolidated action seeking nationwide class relief under California's consumer protection statute. In this case, Daniel Askin hopes to represent a nationwide class based on what he alleges are Quaker's violations of the Illinois Consumer Fraud and Deceptive Business Practices Act ("ICFA"), 815 ILCS 505/1, et seq., and Illinois common law. Currently before the court are the motions of Quaker and the intervening plaintiffs-Victor Guttmann, Kelley Bruno, Sonya Yrene, and Rebecca Yumul-to dismiss this lawsuit under the first-to-file rule. (R. 32, 78.) For the following reasons, the motions are denied to the extent that the moving parties seek dismissal, but this action is stayed pending the outcome of the currently pending motion to dismiss-or alternatively, the class certification proceedings-in the consolidated California action:


This court has described the details of this case's procedural history in previous opinions resolving Quaker's motion to dismiss for lack of standing and the intervening plaintiffs' motion to intervene, see Askin v. Quaker Oats Co., 2011 WL 5008524, at *1-*2 (N.D. Ill. Oct. 20, 2011); Askin v. Quaker Oats Co., __ F.Supp.2d__, 2011 WL 4840704, at *1 (Oct. 12, 2011), but what follows are the background highlights most pertinent to the questions of comity presented in the current first-to-file motion.

Askin is a New York resident who alleges that he purchased Quaker products in New York based on allegedly misleading representations Quaker created in Illinois. (R. 22, Am. Compl. ¶¶ 9-11.) He filed the current suit on January 7, 2011, (R. 1), 11 months after the first of the suits now consolidated in California was filed, (R. 33, Def.'s Mem., Ex. 1), and several weeks after the second and third California suits, (id. Exs. 2 & 3). When Askin filed his complaint here, a motion to consolidate the California actions was pending in the Northern District of California and the California plaintiffs had lodged a proposed consolidated complaint.

Before the motion to consolidate was resolved, Askin filed a motion before a multi-district litigation ("MDL") panel to transfer the California actions to Illinois under 28 U.S.C. § 1407. Askin asserted that both his Illinois case and the California actions "are premised upon claims that Defendant misrepresented the health quality of certain of its food products, such as granola bars and oatmeal, because those products contain trans-fat, an artificial ingredient that the medical community has denounced as extremely harmful to one's health."

(R. 48-6, Ex. F, MDL Br. at 1.) In April 2011 the MDL panel denied Askin's motion, concluding that the parties to the various suits against Quaker "have every ability to cooperate and minimize the possibilities of duplicative discovery and inconsistent pretrial rulings." (R. 48-2, Ex. B at 2.) The MDL panel determined that the filing of Askin's case in Illinois "is insufficient reason at this point to centralize these proceedings." (Id.)

On June 14, 2011, the three California cases-along with a fourth filed after Askin's-were consolidated before Judge Seeborg in the Northern District of California.

(R. 48, Marron Decl., Ex. D.)Although Reese Richman-the law firm representing Askin here-sought appointment as interim class counsel, Judge Seeborg appointed the Weston Firm and the Law Offices of Ronald A. Marron as interim class counsel in the consolidated actions. (Id.) Three days later, Askin filed his first amended complaint in this court, adopting 69 paragraphs from the consolidated complaint nearly verbatim. (Compare R. 22, First Am. Compl., with R. 33, Def.'s Mem. Ex. 5, Consol. Compl.) For example, both complaints allege that Quaker misleads consumers about the nutritional qualities of its Quaker Instant Oatmeal, Quaker Chewy granola bars, and Quaker Oatmeal to Go by failing to disclose that those products contain artificial trans fat. (R. 22, Am. Compl. ¶ ¶ 1, 4; R. 33-5, Ex. 5, Consol. Compl. ¶¶ 4, 14.) Both complaints include the heading "Summary of the Strong Evidence of Artificial Trans Fat's Health Hazards," with pages of literally identical language describing what are alleged to be the dangers of ingesting trans fats. (Compare R. 22, Am. Compl. ¶¶ 25-55, with R. 33-5, Ex. 5, Consol. Compl. ¶¶ 31-59, 61-63.) And the complaints include identical language alleging that Quaker's use of the labels "Heart Healthy," "wholesome," "hearty healthy," "quality," and "goodness in every bowl" are false and misleading in light of the presence of refined sugar and trans fat. (R. 22, Am. Compl. ¶¶ 58-63, 65-75; R. 33-5, Ex. 5, Consol. Compl. ¶¶ 67-83.)

After the parties consented to the jurisdiction of this court, see 28 U.S.C. § 636(c), on July 7, 2011, Quaker filed two motions to dismiss: the current motion, which seeks dismissal under the first-to-file rule; and one to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Four days later, the California plaintiffs moved to intervene in this action to present their own motion to dismiss under the first-to-file rule. This court allowed the California plaintiffs to intervene, (R. 74), and they promptly filed their consent to this court's jurisdiction, (R. 75). This court denied Quaker's motion to dismiss this case for lack of subject matter jurisdiction, finding that Askin has alleged the requisite injury-in-fact to confer standing. (R. 72.) Having determined that jurisdiction exists, the next order of business is to resolve the intervening plaintiffs' and Quaker's motions to dismiss under the first-to-file rule. In the current motions, Quaker and the intervening plaintiffs describe this suit and the consolidated California action as "mirror-image" lawsuits, and request that this case be dismissed in deference to the earlier filed cases. Askin asserts that there are material differences between the parties, claims, and issues in the pending suits, and thus argues that the first-to-file rule has no applicability here.


The first-to-file "rule" on which the movants rely in seeking dismissal of this lawsuit is viewed in this circuit not as a hard-and-fast rule, but rather as a question of comity over which the district court enjoys a great deal of discretion. See Research Automation, Inc. v. Schrader-Bridgeport Int'l, Inc., 626 F.3d 973, 980-81 (7th Cir. 2010); Trippe Mfg. Co. v. American Power Conversion Corp., 46 F.3d 624, 629 (7th Cir. 1995) (noting that "[t]his circuit does not rigidly adhere to a 'first-to-file' rule"). The doctrine exists "to prevent multiplicity of actions and to achieve resolution in a single lawsuit of all disputes arising out of common matters." Warshawsky & Co. v. Arcata Nat'l Corp., 552 F.2d 1257, 1261 (7th Cir. 1977). In other words, the first-to-file principle is part of the district court's "inherent power to administer their dockets so as to conserve scarce judicial resources" by avoiding duplicative litigation. Trippe, 46 F.3d at 629. Cases are considered duplicative where "there are no significant differences between the claims, parties, and available relief." Serlin v. Arthur Andersen & Co., 3 F.3d 221, 224 (7th Cir. 1993). When confronted with duplicative litigation, the district court is authorized to dismiss, transfer, or stay a second-filed case under the first-to-file principle. See Id. at 223; Pfizer v. Apotex, 640 F.Supp.2d 1006, 1007-08 (N.D. Ill. 2009).

Given that Askin's complaint in this case is largely a word-for-word copy of the consolidated complaint in California, there can be little debate that the allegations underlying both suits are almost identical. Both suits identify the same Quaker products as bearing misleading labels, identify the same key phrases-for example, "heart healthy," "wholesome," and "smart choice made easy"-as the sources of the misrepresentations, and cite the same studies to support their claims that the accused products contain ingredients that are dangerous to the consumer's health. Indeed, in his motion to transfer brought before the MDL panel, Askin characterized this case and the California cases as arising out of "a common core of operative factual allegations . . . premised upon the same factual basis that [Quaker] allegedly misrepresented the quality of certain of its food products (granola bars and oatmeal) because those food products contain trans-fat." (R. 48-6, Ex. F, MDL Mot. at 2.) In light of that admission, Askin can hardly argue with any credibility here that there are substantial differences in the underlying allegations.

Despite this admission, Askin now makes two vain attempts to distinguish what is at stake in this case from the claims pending in California. First, he argues that he is pursuing a theory that is unique to his case-Quaker "misled consumers to believe that the Quaker Oats granola bars and oatmeal products contained 0 grams of trans-fat, when, in fact, this was untrue, as the Products contained as much as 5 grams of trans-fat." (R. 81, Resp. at 3.) But the four original actions in California did challenge Quaker's use of the "0g Trans Fat" label. As Askin is aware, that challenge does not appear in the current consolidated complaint in California because in ruling on Quaker's motion for judgment on the pleadings, Judge Seeborg determined that particular claim to be preempted by federal regulations. See Chacanaca v. Quaker Oats Co., 752 F.Supp.2d 1111, 1121 (N.D. Cal. 2010). It appears that Askin may be arguing that even though the California plaintiffs originally attacked Quaker's use of the "0 grams trans-fat" label as misleading, only he claims it is misleading because there may be up to five grams of trans-fat in each box of granola bars. The California plaintiffs, by contrast, only claimed that there are trace amounts of trans fat in each individual serving. But contrary to Askin's assertion that this distinction renders his theories of liability much broader than the California plaintiffs', it really is a trivial difference ...

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