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Michael D. Braun (167416) BRAUN LAW GROUP, P.C. 10680 W. Pico Blvd., Suite 280 Los Angeles, CA 90064 Tel: (310) 836-6000 Fax: (310) 836-6010 Joseph N. Kravec, Jr.(admitted pro hac vice) STEMBER FEINSTEIN DOYLE PAYNE & KRAVEC, LLC Allegheny Building, 17th Floor 429 Forbes Avenue Pittsburgh, PA 15219 Tel: (412) 281-8400 Fax: (412) 281-1007 Janet Lindner Spielberg (221926) LAW OFFICES OF JANET LINDNER SPIELBERG 12400 Wilshire Boulevard, Suite 400 Los Angeles, California 90025 Tel: (310) 392-8801 Fax: (310) 278-5938 Attorneys for Plaintiffs Thurston and Denmon-Clark

James S. Notis (admitted pro hac vice) Jennifer Sarnelli (242510) GARDY & NOTIS, LLP 560 Sylvan Avenue Englewood Cliffs, NJ 07632 Tel: (201) 567-7377 Fax: (201) 567-7337 Attorneys for Plaintiffs Corriette and Waldron

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA CASE NO.: 10-cv-04937-PJH CHANEE THURSTON and TANASHA DENMON-CLARK on behalf of themselves and all others similarly situated, Plaintiffs v. CONOPCO, INC. d/b/a UNILEVER (formerly d/b/a GOOD HUMOR-BREYERS) d/b/a BREYERS, Defendant. CLASS ACTION PLAINTIFFS NOTICE OF MOTION AND MEMORANDUM IN SUPPORT OF MOTION FOR CONSOLIDATION PURSUANT TO FED. R. CIV. P. 42(a), APPOINTMENT OF INTERIM CO-LEAD COUNSEL PURSUANT TO FED. R. CIV. P. 23(g), AND LEAVE TO AMEND Hearing Date: June 12, 2013 Time: 9:00 a.m. Courtroom: 3 (Oakland Courthouse)

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1 2 3

ROSS CORRIETTE and JAMES WALDRON RELATED CASE on behalf of themselves and all others similarly situated, Case No. 11-cv-01811-PJH Plaintiffs

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v. UNILEVER d/b/a BREYERS,

Defendant.

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TABLE OF CONTENTS STATEMENT OF FACTS .................................................................................................................. 1 A. Nature of the Action............................................................................................... 1 B. Procedural History ................................................................................................. 2 ARGUMENT ....................................................................................................................................... 4 I. II. Consolidation of the Breyers Actions is Appropriate ..................................................... 4 Plaintiffs Counsel Meet All Rule 23(g) Requirements for Appointment of.................. 5 A. The Work Plaintiffs Counsel Have Done in Identifying and Investigating Potential Claims in this Action ........................................................................ 5 B. Class Counsel have Significant Experience in Handling Class Actions, Other Complex Litigation, and the Types of Claims Asserted in this Action . 6 C. Plaintiffs Counsel Have Proven Knowledge of the Applicable Law and Experience in this Type of Litigation .............................................................. 8 D. Proposed Interim Co-Lead Class Counsel Have and Will Dedicate the Resources Necessary to Represent the Class ................................................... 9 III. The Court Should Grant Plaintiffs Leave to Amend .................................................... 10

CONCLUSION .................................................................................................................................. 11

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TABLE OF AUTHORITIES CASES PAGE Cooper Dev. Co. v. Emprs Ins. of Wausau, 765 F. Supp. 1429 (N.D. Cal. 1991)................................................................................................. 10 DCD Programs, Ltd. v. Leighton, 833 F.2d 183 (9th Cir. 1987) ............................................................................................................ 10 Dennis v. Kellogg Co., 697 F.3d 858 (9th Cir. Cal. 2012) .................................................................................................. 3, 6 Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048 (9th Cir. 2003) .......................................................................................................... 10 Ferguson v. Corinthian Coll. Inc., No. 11-127, 2011 WL 1519352 (C.D. Cal. Apr. 15, 2011)................................................................ 4 Foman v. Davis, 371 U.S. 178 (1962) ......................................................................................................................... 10 Hawecker v. Sorensen, No. 10-85, 2011 WL 1560809 (E.D. Cal. Apr. 22, 2011) .................................................................. 5 Heune v. United States, 743 F.2d 703 (9th Cir. 1984) .............................................................................................................. 5 In re Adams Apple, Inc., 829 F.2d 1484 (9th Cir. 1987) ............................................................................................................. 4 Investors Research Co. v. U.S. Dist. Court for Cent. Dist. Of Cal., 877 F.2d 777 (9th Cir. 1989) .............................................................................................................. 4 JSR Micro, Inc. v. QBE Ins. Corp., No. C 09-3044 PJH, 2010 WL 5211504 (N.D. Cal. Dec. 16, 2010) ................................................ 11 Kaminske v. JP Morgan Chase Bank N.A., No. 09-00918 JVS(RNBx), 2011 WL 521338 (C.D. Cal. Jan 3, 2011) ............................................. 5 Mohanty v. BigBand Networks, Inc., No. C 07-5101 SBA, 2008 WL 426250 (N.D. Cal. Feb. 14, 2008) ................................................... 4 Schueneman v. Arena Pharms., Inc., No. 10-1959 BTM (BLM), 2011 WL 3475380 (S.D. Cal. Aug. 8, 2011) ......................................... 4 Zeisel v. Diamond Foods, Inc., No. C 1001192 JSW, 2012 WL 4902970 (N.D. Cal. Oct. 16, 2012) ............................................... 9 Zeisel v. Diamond Foods, Inc., No. C 10-01192 JSW, 2011 WL 2221113 (N.D. Cal. June 7, 2011) ............................................. 8, 9

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27

RULES Fed. R. Civ. P. 23(g) ............................................................................................................................. 5, 8 Fed. R. Civ. P. 23(g)(1)(A) ...................................................................................................................... 5 Fed. R. Civ. P. 23(g)(1)(B) ....................................................................................................................... 5 Rule 23(g)(1)(A)(iv) ............................................................................................................................... 10 Fed. R. Civ. P. 15(a)(2) .......................................................................................................................... 10 Fed. R. Civ. P. 23 (2003 Advisory Committees Notes) .......................................................................... 5 Fed. R. Civ. P. 42(a) ................................................................................................................................. 4

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1 2

TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on June 12, 2013 at 9:00 a.m., or as soon thereafter as counsel

3 may be heard before the Honorable Judge Phyllis J. Hamilton, United States District Court Judge for 4 the Northern District of California, 1301 Clay Street, Courtroom 3, Oakland, CA 94612, Plaintiffs 5 Chanee Thurston, Tanasha Denmon-Clark, Ross Corriette, and James Waldron (Plaintiffs) will and 6 hereby do move this Court pursuant to Fed. R. Civ. P. 42(a) and 23(g) for entry of an Order 7 consolidating the above-captioned, related actions, Thurston et al v. Conopco, Inc., Case No. 10-049378 PJH (the Thurston Action), and Corriette, et al. v. Unilever, Case No. 11-1811-PJH (the Corriette 9 Action) (collectively, the Breyers Actions). Should the Court grant consolidation of these actions 10 Plaintiffs also seek to appoint Gardy & Notis, LLP; Stember Feinstein Doyle, Payne & Kravec, LLC; 11 the Law Offices of Janet Lindner Spielberg; and the Braun Law Group, P.C. as Interim Co-Lead Class 12 Counsel for the consolidation action. Finally, Plaintiffs seek leave to amend a Consolidated Amended 13 Complaint. This Motion is based on the points and authorities herein, the Declaration of Janet

14 Speilberg, and Exhibits thereto, the papers and pleadings on file in this matter and any argument made 15 by counsel at the hearing. Concurrently submitted with this Motion is a [Proposed] Order. 16 Plaintiffs seek to consolidate the Breyers Actions pursuant to Fed. R. Civ. P. 42(a) in the

17 interests of efficiency. Should the Court consolidate the actions, Plaintiffs seek to have their chosen 18 counsel, Gardy & Notis, LLP; Stember Feinstein Doyle, Payne & Kravec, LLC; the Law Offices of 19 Janet Lindner Spielberg; and the Braun Law Group, P.C., (Plaintiffs Counsel), appointed as Interim 20 Co-Lead Class Counsel pursuant to Fed. R. Civ. P. 23(g). 21 Consolidated Amended Complaint 22 23 24 A. Nature of the Action STATEMENT OF FACTS Plaintiffs also seek leave to file a

On November 1, 2010, Plaintiffs Thurston and Denmon-Clark filed a complaint for damages,

25 equitable, declaratory and injunctive relief against Defendant Unilever in the Northern District of 26 California asserting common law fraud, consumer fraud and unjust enrichment claims on behalf of a 27 putative nationwide class and a California sub-class of consumers who purchased Breyers All Natural 28 CASE NOS.: 10-cv-04937-PJH,
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1 original ice creams, yogurts and sorbets or Breyers Smooth & Dreamy Fat All Natural ice creams, 2 yogurts and sorbets containing alkalized cocoa. Thurston Doc. No. 1. 3 On November 4, 2010, Plaintiffs Corriette and Waldron (along with a third Plaintiff who has

4 since withdrawn), filed a similar class action complaint against Defendant Unilever in the District of 5 New Jersey. See Corriette, Doc. 1. The Corriette Action asserted claims for consumer fraud, breach of 6 express and implied warranties, and unjust enrichment on behalf of a nationwide class and a New 7 Jersey sub-class of consumers who purchased Breyers All Natural Original Ice Cream and Breyers 8 Smooth & Dreamy Fat All Natural Ice Cream containing alkalized cocoa, and alleged that these Ice 9 Cream Products were not All Natural because they contained alkalized cocoa. Id. at 1-2, 6. The 10 Corriette Action was ultimately transferred to this Court and the Thurston and Corriette Actions were 11 related. Thurston, Doc. No. 52; Corriette Doc No. 27. 12 13 B. Procedural History

On December 6, 2010, Defendants filed a motion to dismiss and motion to strike in the Thurston

14 Action. Thurston Doc. No. 17. Defendants briefed an exhaustive array of arguments including federal 15 preemption, abstention, and a Fed. R. Civ. P. 9(b) challenge. In response to Defendants motions, 16 Plaintiffs Thurston and Denmon-Clark filed Amended Complaints. Thurston, Doc. No. 21. On

17 December 20, 2010, Defendants renewed their motions to dismiss and strike. Plaintiffs opposed. See 18 Thurston, Docs. 34, 35. 19 Thereafter, on December 22, 2010, Unilever also filed a motion to dismiss the Corriette Action,

20 which was then pending in the District of New Jersey. Corriette Doc. No. 13. The Corriette Plaintiffs 21 similarly opposed Unilevers motion to dismiss. Id. at Doc. No. 15. On March 28, 2011, the Honorable 22 William H. Walls, U.S.D.J., transferred the Corriette Action to the Northern District of California, 23 where the Thurston Action was pending. Id. at Doc. 18, 19, 20. Judge Walls further ruled that if the 24 motion to dismiss that was pending in the Thurston Action was granted, the Corriette Plaintiffs could 25 return to the District of New Jersey to litigate their claims. Id. at Doc. 18, 19. 26 On May 26, 2011, this Court entered an Order denying Defendants motions to dismiss and to

27 strike in the Thurston Action in their entirety. See Thurston, Doc. 56. Subsequent to the Courts May 28 CASE NOS.: 10-cv-04937-PJH,
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1 26, 2011 Order, the parties engaged in settlement discussions. After a series of preliminary discussions 2 regarding the parameters of a possible settlement, the parties agreed to mediate these matters on 3 September 14, 2011, before David A. Rotman, Esq., of Gregorio, Haldeman, & Rotman. See Plaintiffs 4 Memorandum in Support of Unopposed Motion for Preliminary Approval at 7, Thurston, Doc. 56. 5 During that mediation the parties were able to reach agreement on certain key terms of the Settlements, 6 and agreed to continue negotiating remaining terms thereafter. Id. After approximately five weeks of 7 continued negotiations involving the mediator, the parties reached agreements in principle. Id. Prior to 8 seeking Preliminary Approval, Plaintiffs sought discovery regarding Defendants profits and sales, 9 certain merits and class certification issues, and took two Fed.R.Civ.P. 30(b)(6) depositions to further 10 ensure that the terms of the Settlements were fair, reasonable and adequate. Id. 11 On March 30, 2012, the Court granted preliminary approval of the Settlements. Thurston Doc.

12 No. 47; Corriette Doc. No. 51. The Court conditionally certified the Settlement Class pursuant to 13 Federal Rule of Civil Procedure 23(a) and (b)(3), appointing the Law Offices of Janet Lindner 14 Spielberg, the Braun Law Group, P.C., Stember Feinstein Doyle, Payne & Kravec, LLC, and Gardy & 15 Notis, LLP as Co-Lead Counsel for the Class in the Breyers Actions. Id. 16 Due to the Ninth Circuits recent decision in Dennis v. Kellogg Company, No. 11-55674 (9th

17 Cir. Sept. 4, 2012), final approval of the parties Settlement was denied. To effectively and efficiently 18 continue litigating the Breyers Actions, Plaintiffs now ask that the Court consolidate the cases for 19 purposes of litigation, then appoint Gardy & Notis, LLP; Stember Feinstein Doyle, Payne & Kravec, 20 LLC; the Law Offices of Janet Lindner Spielberg; and the Braun Law Group, P.C., as Interim Co-Lead 21 Counsel for the class and provide leave to file a Consolidated Amended Complaint attached as Exhibit
1 22 A to the Declaration of Janet Lindner Speilberg (Speilberg Decl.).

23

The Court held a case management conference on January 31, 2013. Thurston Doc. No. 96; 24 Corriette Doc. No. 73. During this conference the Court instructed Counsel that they should attach a proposed Consolidated Amended Complaint to the Motion to Consolidate. See Speilberg Decl. at 3. 25 Following the conference Plaintiffs Counsel drafted a proposed Consolidated Amended Complaint and sought consent from counsel for Defendant to file. See Speilberg Decl. at 4, Ex. B. Counsel for 26 Defendant was unwilling to consent to filing the Consolidated Amended Complaint because Plaintiffs chose to include a breach of warranty claim (which was previously alleged in the Corriette complaint). 27 Id. Thus, Plaintiffs seek leave to file the proposed Consolidated Amended Complaint. 28 CASE NOS.: 10-cv-04937-PJH,
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1 2 I. 3

ARGUMENT Consolidation of the Breyers Actions is Appropriate If actions before the court involve a common question of law or fact, the court may: (1) join

4 for hearing or trial any or all matters at issue in the actions; (2) consolidate the actions; or (3) issue any 5 other orders to avoid unnecessary cost or delay. Fed. R. Civ. P. 42(a). The district court has broad 6 discretion under Rule 42 to consolidate cases pending in the same district. Investors Research Co. v. 7 U.S. Dist. Court for Cent. Dist. Of Cal., 877 F.2d 777, 777 (9th Cir. 1989); see also In re Adams
th 8 Apple, Inc., 829 F.2d 1484, 1487 (9 Cir. 1987) (sua sponte consolidation of cases involving common

9 issues of law and fact is within the courts broad discretion). The purpose of consolidation is to 10 avoid the unnecessary costs or delays that would ensue from proceeding separately with claims or 11 issues sharing common aspects of law or fact. Mohanty v. BigBand Networks, Inc., No. 07-5101 12 SBA, 2008 WL 426250, at *2 (N.D. Cal. Feb. 14, 2008)(internal citations omitted). Class action suits 13 in particular are ideally suited to consolidation because their unification expedites proceedings, 14 reduces duplication, and minimizes the expenditure of time and money by all concerned. See 15 Schueneman v. Arena Pharms., Inc., No. 10-1959, 2011 WL 3475380, at *1 (S.D. Cal. Aug. 8, 2011); 16 see also Ferguson v. Corinthian Coll. Inc., No. 11-127, 2011 WL 1519352, at *2 (C.D. Cal. Apr. 15, 17 2011) (finding the interest of judicial and party convenience rendered consolidation appropriate 18 because the actions involved common questions of law and fact, as well as similar defendants and 19 class definitions). Among other things, [c]onsolidation facilitates discovery, conserves judicial

20 resources, and reduces the confusion and delay that result from prosecuting related class action cases 21 separately. Mohanty, 2008 WL 426250, at *3. 22 Here, the related cases involve common questions of fact and law. They also involve the same

23 defendant, and have similar class definitions. As a result, the saving of time and effort consolidation 24 would produce will clearly outweigh any inconvenience, delay or expense that it would cause, 25 rendering consolidation appropriate here. See Heune v. United States, 743 F.2d 703, 704 (9th Cir. 26 1984); see also Hawecker v. Sorensen, No. 10-85, 2011 WL 1560809, at *2 (E.D. Cal. Apr. 22, 2011) 27 (concluding consolidation would save time, effort, and duplication given the likelihood of 28 CASE NOS.: 10-cv-04937-PJH,
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1 substantial overlap of witnesses).

Accordingly, Plaintiffs respectfully request that the Court

2 consolidate the Breyers Actions, allowing them to proceed under a single case number. 3 II. 4 5 have their chosen counsel appointed as Interim Co-Lead Counsel for the consolidated action. Rule 6 23(g)(3) provides that [t]he court may designate interim counsel to act on behalf of a putative class 7 before determining whether to certify the action as a class action. Fed. R. Civ. P. 23(g). In appointing 8 interim class counsel, Rule 23(g) further provides that a court must consider: 9 (i) 10 11 12 13 (ii) (iii) (iv) Counsels experience in handling class actions, other complex litigation, and the types of claims asserted in the action; Counsels knowledge of the applicable law; and The resources that counsel will commit to representing the class. The work counsel has done in identifying or investigating potential claims in the action; Plaintiffs Counsel Meet All Rule 23(g) Requirements for Appointment of Interim Co-Lead Counsel Should the Court grant Plaintiffs request to consolidate the Breyers Actions, Plaintiffs seek to

14 Fed. R. Civ. P. 23(g)(1)(A); see also Kaminske v. JP Morgan Chase Bank N.A., No. 09-00918 15 JVS(RNBx), 2011 WL 521338, at *2 (C.D. Cal. Jan 3, 2011). In addition, courts may also consider 16 any other matter pertinent to counsels ability to fairly and adequately represent the interests of the 17 class. Fed. R. Civ. P. 23(g)(1)(B). 18 The Advisory Committee Notes on Rule 23(g) provide further context for application of the

19 rule: Subdivision (g)responds to the reality that the selection and activity of class counsel are often 20 critically important to successful handling of a class action. This subdivision recognizes the

21 importance of class counsel, states the obligation to represent the interest of the class, and provides a 22 framework for selection of class counsel. Fed. R. Civ. P. 23 (2003 Advisory Committees Notes). 23 As set forth below, Plaintiffs Counsel satisfy all of the foregoing criteria under Rule 23(g) and

24 are best able to represent the interests of the class in the consolidated action. A. The Work Plaintiffs Counsel Have Done in Identifying and Investigating 25 Potential Claims in this Action 26 27 28 CASE NOS.: 10-cv-04937-PJH,
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Plaintiffs counsel have done substantial work in identifying and investigating potential claims

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1 in the Breyers Actions. After receiving consumer complaints indicating that some flavors of Breyers 2 Ice Cream were not All Natural, Plaintiffs Counsel began their initial investigation. Specifically, 3 Plaintiffs Counsel began a lengthy and detailed factual investigation into the ingredients in Breyers Ice 4 Cream; the specific flavors that contained alkalized cocoa, and Defendants advertising efforts. In 5 addition to reviewing the facts, Plaintiffs Counsel spent a substantial amount of time and effort 6 investigating the law, including FDA regulations and warning letters, and crafting legal claims for relief 7 for consumers that purchased Breyers Ice Cream that was wrongly labeled All Natural. Upon 8 completing their investigation, Plaintiffs Counsel filed the initial complaint in the Thurston Action on 9 November 1, 2010 in the Northern District of California. Three days later, the Corriette Action was 10 filed in the District of New Jersey. 11 After motions to dismiss were briefed in both the Corriette and Thurston Actions, the Corriette

12 Action was transferred to the Northern District of California. Each of Defendants motions to dismiss 13 having been denied, the attorneys in both cases decided to coordinate their efforts in the interests of 14 economy and efficiency, with a unified goal of properly and professionally advancing the litigation. 15 Through their concerted efforts a settlement was reached; confirmatory discovery was conducted; and 16 preliminary approval of that settlement was granted. The intervening decision in Dennis v. Kellogg 17 Co., 697 F.3d 858 (9th Cir. Cal. 2012) forced this Courts denial of final approval of that settlement, 18 however, Plaintiffs Counsel stand ready to continue to investigate and prosecute the Breyers Actions, 19 and request appointment of Interim Co-Lead Counsel to help facilitate that goal. B. Class Counsel have Significant Experience in Handling Class Actions, Other 20 Complex Litigation, and the Types of Claims Asserted in this Action 21 Plaintiffs Counsel bring a wealth of relevant experience in prosecuting class actions. See

22 Speilberg Decl. at Exhibits C-F. For example, the attorneys at Gardy & Notis have premier experience 23 litigating some of the largest class action cases, with an emphasis on securities, consumer, and 24 corporate governance cases. See e.g. In re UnitedHealth Group Inc. Der. Litig., Case No. 27-CV-0625 8085 (MN. Dist. Ct. Hennepin County) ($930 million settlement); In re BankAmerica Corp. Sec. Litig. 26 MDL No. 1264 (E.D. Mo.) ($490 million recovery); In re Adelphia Communications Corp. Sec. & Der. 27 Litig., MDL No. 1529 (S.D.N.Y.) ($455 million recovery); In re Apple iPhone 4 Products Liability 28 CASE NOS.: 10-cv-04937-PJH,
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1 Litigation, MDL No. 10-2188 (N.D. Cal. Aug. 10, 2012) (free bumper ($29) and cash ($15) available to 2 all 21 million class members); see also Speilberg Decl. at Ex. C. 3 Joseph N. Kravec, Jr., the lead partner from Stember in this case, has twenty years experience

4 primarily litigating consumer class action cases, and has played integral roles as co-lead counsel in 5 class actions recovering billions of dollars for millions of consumers. See Speilberg Decl. at Ex. D. 6 Mr. Kravec was recently co-lead counsel in a consumer litigation that certified a California class of 7 450,000 policyholders under Californias UCL, and achieved a class-wide settlement valued at $86 8 million. Wahl v. American Security Insurance Company, Case No. 08-cv-00555 RS (N.D. Cal. filed 9 January 25, 2008). Mr. Kravec has been co-lead counsel in numerous other class actions throughout the 10 United States in his twenty years of practice, including consumer and multi-district class actions 11 involving millions of class members. One federal district judge recognized that, Joseph N. Kravec, 12 Jr. [has] significant experience litigating class actions and [has] been found adequate by other 13 courts, and [has] provided diligent and competent representation in the above-captioned case during 14 the proceedings. Zeno v. Ford Motor Co., Inc., 238 F.R.D. 173, 188 (W.D. Pa.2006)(citing Varacallo 15 v. Mass. Mut. Life Ins. Co., 226 F.R.D. 207, 233 (D.N.J. 2005); In re Metro. Life Ins. Co. Sales 16 Practices Litig., No. MDL 1091, 1999 WL 33957871, at *21 (W.D. Pa. Dec. 28, 1999). Mr. Kravec 17 was recently appointed co-lead class counsel in Astiana v. Kashi Corp, Case No. 1-cv-01967-H-BGS 18 (S.D. Cal.) Dkt. No. 41 and co-lead counsel in Spears. v. First American EappraiseIT, Case No. 5-0819 cv-00868 (RMW) (N.D. Cal.) (August 1, 2012). 20 Ms. Spielberg graduated law school in 2002 after a successful career as a Clinical Psychologist.

21 See Speilberg Decl. at Ex. E. Ms. Spielberg has dedicated her legal career to the prosecution of class 22 actions and has practiced extensively in the area of consumer litigation. Id. She has obtained millions 23 of dollars on behalf of the classes she represented and has often been complemented on her work. 24 Judge Peter D. Lichtman (Ret.), a Los Angeles Superior Court Judge well-known for his skills as a 25 mediator in complex cases, stated my compliment to plaintiffs counsel who were virtually 26 unwavering in their approach toward the case in wanting to see a successful resolution Outten v. 27 Career Education Corporation, et al., Case No. BC 318199 (Cal. Sup. Ct, January 10, 2008). Ms. 28 CASE NOS.: 10-cv-04937-PJH,
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1 Spielberg was recently appointed co-lead class counsel in Spears v. First American EappraiseIT, Case 2 No. 5-08-cv-00868 (RMW) (N.D. Cal.) (August 1, 2012). 3 Mr. Braun was admitted to the California Bar in 1993 and is a member of the Bars of the

4 District of Columbia, New York, England and Whales. See Speilberg Decl. at Ex. F. Since graduating, 5 Mr. Braun has dedicated his entire legal career to prosecuting complex and class action litigation on 6 behalf of consumers and shareholders. Id. Over the course of the past twenty years, Mr. Braun has 7 served as lead or liaison counsel in well over a hundred cases and has been recognized as a Super 8 Lawyer every year since 2005. Id. He was also named a Lawyer of the Year (Clay Award) in 2000 9 by California Lawyer Magazine for his work on Small v. Fritz Co., 30 Cal. 4th 167 (April 7, 2003). 10 As made abundantly clear by the preceding examples, Plaintiffs Counsel have ample

11 experience handling complex, nationwide class litigation, including consumer class actions, and offer 12 all the hallmarks of adequate lead counsel under Fed. R. Civ. P. 23(g). See Berndt v. Cal. Dept. of 13 Corr., No. C03-3174 VRW, 2010 WL 5209384, at *1 (N.D. Cal. Dec. 16, 2010) (finding the 14 requirements of Rule 23(g)(1)(A)(2) met where counsel have multiple appearances before this Court 15 and others [and] have experience in handling class actions and other complex civil rights and 16 employment litigation.). C. Plaintiffs Counsel Have Proven Knowledge of the Applicable Law and 17 Experience in this Type of Litigation 18 Proposed Interim Co-Lead Class Counsel are not only experienced in litigating class action

19 cases, they are also particularly knowledgeable about the laws applicable to this action. Gardy & Notis 20 is very familiar with litigating large-scale consumer actions and is currently litigating a variety of other 21 cases in this District and is very familiar with not only the New Jersey laws at issue in this case, but 22 also Californias UCL and CLRA statutes. Thurstons Counsel have extensive experience prosecuting 23 similar food labeling and consumer cases. Indeed, Thurstons Counsel recently settled, Zeisel v. 24 Diamond Foods, Inc., No. C 10-01192 JSW, 2011 WL 2221113 (N.D. Cal. June 7, 2011). Diamond 25 involved a nationwide litigation of class of consumers who purchased walnuts mislabeled with health 26 claims in violation of the FDA regulations and California law. Plaintiff withstood a motion to dismiss 27 successfully certifying a nationwide class under the CLRA, UCL, False Advertising Law, and for unjust 28 CASE NOS.: 10-cv-04937-PJH,
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1 enrichment. Id. at *10-12. After two years of litigation, the matter was ultimately settled and finally 2 approved. The Court had two opportunities to consider the adequacy of Counsel, first on class On both occasions the Court appointed

3 certification and then again on preliminary approval. 4 Thurstons Counsel as class counsel.

Specifically the Court found Counsel to have extensive

5 experience in prosecuting complex consumer litigation, noting the Diamond case was vigorously 6 litigated through a motion to dismiss, class certification and impending summary judgment before 7 being resolved. Zeisel v. Diamond Foods, Inc., No. C 1001192 JSW, 2012 WL 4902970, *3 (N.D. 8 Cal. Oct. 16, 2012). Accordingly, proposed Interim Co-Lead Class Counsel have the requisite

9 knowledge in the underlying law to satisfy Rule 23(g)(1)(A)(iii). D. Proposed Interim Co-Lead Class Counsel Have and Will Dedicate the 10 Resources Necessary to Represent the Class 11 Proposed Interim Co-Lead Counsel not only have the knowledge, experience and ability

12 represent the proposed class, they also have the resources necessary to litigate this case. Counsel have 13 dedicated resources to thoroughly investigate, develop, and gather evidence supporting the underlying 14 allegations and bringing this matter to light, and the findings of their investigations are clearly set forth 15 in the allegations of their respective complaints. Further, as experienced class action litigators with 16 practices dedicated to the prosecution of class actions, they have collectively demonstrated that they 17 have the ability and the resources to efficiently and effectively prosecute large complex cases on a 18 contingency basis. Indeed, proposed Interim Co-Lead Class Counsel have and are funding litigation 19 against some of the largest corporations in the world, including Google, Mercedes-Benz USA, LLC and 20 Daimler AG, Apple, Inc., and UBS. Going forward, proposed Interim Co-Lead Counsel will continue 21 to staff this case with experienced lawyers to prepare pleadings, write memoranda, conduct discovery 22 and prepare for trial. As Interim Co-Lead Class Counsel, their firms will continue to commit the same 23 resources and effort to this case as they have committed to other, successful litigation efforts. Counsel 24 clearly maintain the financial and litigation resources to properly represent plaintiffs and the class in the 25 consolidated action in satisfaction of Rule 23(g)(1)(A)(iv). 26 27 28 CASE NOS.: 10-cv-04937-PJH,
11-cv-01811-PJH 9 MOTION FOR CONSOLIDATION, APPOINTMENT OF INTERIM CO-LEAD COUNSEL AND LEAVE TO AMEND

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1 III. 2

The Court Should Grant Plaintiffs Leave to Amend Plaintiffs respectfully request that the Court grant them leave to amend. Rule 15 of the Federal

3 Rules of Civil Procedure (Rule 15) provides, in pertinent part, that leave to amend [shall be] freely 4 give[n] when justice so requires. Fed. R. Civ. P. 15(a)(2) (emphasis added). Here, justice requires 5 Plaintiffs be granted leave to amend a Consolidated Amended Complaint. The Supreme Court, the 6 Ninth Circuit, and this Court have repeatedly reaffirmed that leave to amend is to be granted with 7 extreme liberality. DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 186 (9th Cir. 1987) (citation 8 omitted); see, e.g., Foman v. Davis, 371 U.S. 178, 182 (1962) (leave to amend should be freely given); 9 Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003) (Absent prejudice, or a 10 strong showing of any of the remaining Foman factors, there exists a presumption under Rule 15(a) in 11 favor of granting leave to amend.) (emphasis in original); Cooper Dev. Co. v. Emprs Ins. of Wausau, 12 765 F. Supp. 1429, 1432 (N.D. Cal. 1991) (courts have been quite liberal in granting leave to amend). 13 Leave to amend is appropriate unless Defendants can show they will suffer undue prejudice or

14 establish bad faith or dilatory motive on the part of the movant, [or] repeated failure to cure 15 deficiencies by amendments previously allowed . Foman, 371 U.S. at 182. Moreover, it is an abuse 16 of discretion and inconsistent with the spirit of the Federal Rules to refuse to grant the leave without 17 any justifying reason appearing for the denial. Id. at 182. 18 Here, the Thurston and Corriette complaints, while based on the same factual circumstances,

19 allege different causes of action. In consolidating the actions, Plaintiffs seek to file a unified complaint 20 that will encompass the allegations set forth in each of the pending actions. Considering the controlling 21 authority in favor of a policy allowing liberal pleading amendments, Plaintiffs respectfully assert that 22 there is more than enough reason to grant Plaintiffs leave to file a Consolidated Amended Complaint. 23 Plaintiffs have not unduly delayed or engaged in bad faith tactics in seeking leave of Court. Further, 24 Plaintiffs requested relief will not unduly prejudice Defendants. There is no trial date or dispositive 25 motions currently pending. See, e.g., JSR Micro, Inc. v. QBE Ins. Corp., No. C 09-3044 PJH, 2010 WL 26 5211504, at *2 (N.D. Cal. Dec. 16, 2010). Thus, Defendants cannot show any undue prejudice that 27 would result from the Court granting this Motion for Leave to Amend. 28 CASE NOS.: 10-cv-04937-PJH,
11-cv-01811-PJH 10 MOTION FOR CONSOLIDATION, APPOINTMENT OF INTERIM CO-LEAD COUNSEL AND LEAVE TO AMEND

Case4:10-cv-04937-PJH Document99 Filed05/06/13 Page16 of 17

1 2

CONCLUSION For all of the reasons set forth above, Plaintiffs respectfully request that the Court consolidate

3 the Breyers Actions, then appoint Gardy & Notis; Stember Feinstein Doyle, Payne & Kravec, LLC; the 4 Law Offices of Janet Lindner Spielberg; and the Braun Law Group, P.C., as Interim Co-Lead Class 5 Counsel for the consolidated action, and grant leave to file the proposed Consolidated Amended 6 Complaint. 7 DATED: May 6, 2013 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CASE NOS.: 10-cv-04937-PJH,
11-cv-01811-PJH 11 MOTION FOR CONSOLIDATION, APPOINTMENT OF INTERIM CO-LEAD COUNSEL AND LEAVE TO AMEND

Respectfully Submitted, By: /s/ Jennifer Sarnelli Jennifer Sarnelli James S. Notis GARDY & NOTIS, LLP 560 Sylvan Avenue Englewood Cliffs, NJ 07632 Phone: (201) 567-7377 Fax: (201) 567-7337 Attorneys for Plaintiffs Corriette and Waldron Michael D. Braun BRAUN LAW GROUP, P.C. 10680 W. Pico Boulevard, Suite 280 Los Angeles, CA 90064 Phone: (310) 836-6000 Fax: (310) 836-6010 Janet Linder Spielberg LAW OFFICE OF JANET LINDNER SPIELBERG 12400 Wilshire Blvd., Suite 400 Los Angeles, CA 90025 Phone: (310) 392-8801 Fax: (310) 278-5938 Joseph N. Kravec, Jr. STEMBER FEINSTEIN DOYLE PAYNE & KRAVEC, LLC Allegheny Building, 17th Floor 429 Forbes Avenue Pittsburgh, PA 15219 Phone: (412) 281-8400 Fax: (412) 281-1007 Attorneys for Plaintiffs Thurston, Denmon-Clark

Case4:10-cv-04937-PJH Document99 Filed05/06/13 Page17 of 17

1 2 3

Certificate of Service

The undersigned hereby certifies that all counsel of record who are deemed to have consented to

4 electronic service are being served this 6th day of May 2013, with a copy of this document via the 5 Courts CM/ECF system. I certify that all parties who have appeared in this case are represented by 6 counsel who are CM/ECF participants. 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CASE NOS.: 10-cv-04937-PJH,
11-cv-01811-PJH 12 MOTION FOR CONSOLIDATION, APPOINTMENT OF INTERIM CO-LEAD COUNSEL AND LEAVE TO AMEND

/s/ Jennifer Sarnelli Jennifer Sarnelli

Case4:10-cv-04937-PJH Document99-1 Filed05/06/13 Page1 of 5

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

Michael D. Braun (167416) BRAUN LAW GROUP, P.C. 10680 W. Pico Blvd., Suite 280 Los Angeles, CA 90064 Tel: (310) 836-6000 Fax: (310) 836-6010 Joseph N. Kravec, Jr.(admitted pro hac vice) STEMBER FEINSTEIN DOYLE PAYNE & KRAVEC, LLC Allegheny Building, 17th Floor 429 Forbes Avenue Pittsburgh, PA 15219 Tel: (412) 281-8400 Fax: (412) 281-1007 Janet Lindner Spielberg (221926) LAW OFFICES OF JANET LINDNER SPIELBERG 12400 Wilshire Boulevard, Suite 400 Los Angeles, California 90025 Tel: (310) 392-8801 Fax: (310) 278-5938 Attorneys for Plaintiffs Thurston and Denmon-Clark

James S. Notis (admitted pro hac vice) Jennifer Sarnelli (242510) GARDY & NOTIS, LLP 560 Sylvan Avenue Englewood Cliffs, NJ 07632 Tel: (201) 567-7377 Fax: (201) 567-7337 Attorneys for Plaintiffs Corriette and Waldron

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA CASE NO.: 10-cv-04937-PJH CHANEE THURSTON and TANASHA DENMON-CLARK on behalf of themselves and all others similarly situated, Plaintiffs v. CONOPCO, INC. d/b/a UNILEVER (formerly d/b/a GOOD HUMOR-BREYERS) d/b/a BREYERS, Defendant. CLASS ACTION [PROPOSED] ORDER GRANTING PLAINTIFFS MOTION FOR CONSOLIDATION PURSUANT TO FED. R. CIV. P. 42(a), APPOINTMENT OF INTERIM CO-LEAD COUNSEL PURSUANT TO FED. R. CIV. P. 23(g), AND LEAVE TO AMEND Hearing Date: June 12, 2013 Time: 9:00 a.m. Courtroom: 3 (Oakland Courthouse)

27 CASE NOS.: 10-cv-04937-PJH,

11-cv-01811-PJH

28

[PROPOSED] ORDER GRANTING PLAINTIFFS MOTION FOR CONSOLIDATION, APPOINTMENT OF INTERIM CO-LEAD COUNSEL AND LEAVE TO AMEND

Case4:10-cv-04937-PJH Document99-1 Filed05/06/13 Page2 of 5

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 CASE NOS.: 10-cv-04937-PJH,

11-cv-01811-PJH [PROPOSED] ORDER GRANTING PLAINTIFFS MOTION FOR CONSOLIDATION, APPOINTMENT OF INTERIM CO-LEAD COUNSEL AND LEAVE TO AMEND

ROSS CORRIETTE and JAMES WALDRON RELATED CASE on behalf of themselves and all others similarly situated, Case No. 11-cv-01811-PJH Plaintiffs

v. UNILEVER d/b/a BREYERS,

Defendant.

28

Case4:10-cv-04937-PJH Document99-1 Filed05/06/13 Page3 of 5

Having considered plaintiffs Chanee Thurston, Tanasha Denmon-Clark, Ross Corriette, and

2 James Waldron (Plaintiffs) Motion for Consolidation Pursuant to Fed. R. Civ. P. 42(a), Appointment 3 of Interim Co-Lead Counsel Pursuant To Fed. R. Civ. P. 23(g), and Leave to Amend (the Motion), all 4 papers filed in support and in opposition thereto, the argument of counsel and good cause appearing 5 therefore, IT IS HEREBY ORDERED that: 6 7 1. 2. Plaintiffs Motion is GRANTED; The above-captioned actions shall be consolidated for all purposes, including pretrial

8 proceedings and trial, pursuant to Fed. R. Civ. P. 42(a); 9 3. All documents previously filed to date in the cases consolidated herein are deemed a

10 part of the record in the Consolidated Action. Every pleading in the consolidated action shall have the 11 following caption: 12 13 14 15 16 4. Any other actions now pending in, later filed in, or transferred to this Court which arise In re Breyers All Natural Ice Cream Consumer Litigation CASE NO.: 10-cv-04937-PJH CLASS ACTION

17 out of, or are related to, the same facts as alleged in the above-captioned cases shall be consolidated for 18 all purposes, if and when they are brough to this Courts attention; 19 5. The law firms of Gardy & Notis, LLP; Stember Feinstein Doyle, Payne & Kravec, LLC;

20 the Law Offices of Janet Lindner Spielberg; and the Braun Law Group, P.C. are hereby appointed as 21 Interim Co-Lead Counsel; 22 6. In appointing Interim Co-Lead Counsel the Court considered Federal Rule of Civil

23 Procedure 23(g)(3) which states, The court may designate interim counsel to act on behalf of a 24 putative class before determining whether to certify the action as a class action. Rule 23 requires that, 25 when appointing counsel, the court consider the following factors: (i) the work counsel has done in 26 identifying or investigating potential claims in the action; (ii) counsels experience in handling class 27 28
CASE NOS.: 10-cv-04937-PJH, 11-cv-01811-PJH 1 [PROPOSED] ORDER GRANTING PLAINTIFFS MOTION FOR CONSOLIDATION, APPOINTMENT OF INTERIM CO-LEAD COUNSEL AND LEAVE TO AMEND

Case4:10-cv-04937-PJH Document99-1 Filed05/06/13 Page4 of 5

1 actions, other complex litigation, and the types of claims asserted in the action; (iii) counsels 2 knowledge of the applicable law; and (iv) the resources that counsel will commit to representing the 3 class. The law firms of Gardy & Notis, LLP; Stember Feinstein Doyle, Payne & Kravec, LLC; the Law 4 Offices of Janet Lindner Spielberg; and the Braun Law Group, P.C. meet each of these requirements; 5 7. Plaintiffs Interim Co-Lead Counsel shall have day-to-day responsibility for the conduct

6 of the consolidated litigation; shall determine how to prosecute the case and shall initiate, coordinate 7 and supervise the efforts of plaintiffs counsel in the consolidated action in the areas of discovery, 8 briefing, trial and settlement. 9 8. Plaintiffs Interim Co-Lead Counsel may delegate responsibility for specific tasks to

10 other plaintiffs counsel in the consolidated action in a manner to assure that pretrial preparation is 11 conducted effectively, efficiently and economically; shall assist in maintaining communication among 12 counsel; and shall monitor the activities of plaintiffs counsel to assure that schedules are met and 13 unnecessary expenditures of time and money are avoided. Plaintiffs Interim Co-Lead Counsel shall 14 maintain the official service list of all plaintiffs and plaintiffs counsel in the consolidated action, 15 including their addresses. Plaintiffs Interim Co-Lead Counsel shall perform whatever any additional 16 functions that may be assigned to them by the Court. Agreements reached between Defendant and 17 Plaintiffs Interim Co-Lead Counsel are binding on all plaintiffs and their counsel. No discovery shall 18 be served, and no motion shall be filed, by any plaintiffs counsel without the consent of Plaintiffs 19 Interim Co-Lead Counsel, unless leave of Court is obtained. 20 9. Service of all papers filed with the Court shall be accomplished by e-filing, and no other

21 type of service shall be required. Service of all papers that are not filed with the Court shall be 22 accomplished by plaintiffs serving defendants counsel, and by defendant serving Plaintiffs Interim 23 Co-Lead Counsel, as applicable, by either: (i) email (ii) overnight mail service; or (iii) hand delivery. 24 Whenever feasible, the serving party shall send courtesy copies simultaneously via e-mail in PDF 25 format, to Defendants counsel or to Plaintiffs Interim Co-Lead Counsel, as applicable. 26 27 28
CASE NOS.: 10-cv-04937-PJH, 11-cv-01811-PJH 2 [PROPOSED] ORDER GRANTING PLAINTIFFS MOTION FOR CONSOLIDATION, APPOINTMENT OF INTERIM CO-LEAD COUNSEL AND LEAVE TO AMEND

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10.

Plaintiffs are hereby grated leave to file the proposed Consolidated Amended Complaint.

2 Plaintiffs shall file the proposed Consolidated Amended Complaint within 14 days of the date this 3 Order is entered. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
CASE NOS.: 10-cv-04937-PJH, 11-cv-01811-PJH 3 [PROPOSED] ORDER GRANTING PLAINTIFFS MOTION FOR CONSOLIDATION, APPOINTMENT OF INTERIM CO-LEAD COUNSEL AND LEAVE TO AMEND

IT IS SO ORDERED

____________________ DATED

___________________________________ HONORABLE PHYLLIS J. HAMILTON UNITED STATES DISTRICT COURT JUDGE