Wagner v. Driven Sports, Inc.

          STIPULATION AND [PROPOSED] ORDER FOR PRE-TRIAL CONSOLIDATION CLASS ACTION JURY TRIAL DEMAND

          EDWARD M. CHEN, District Judge.

         I. STIPULATION

         1. WHEREAS there are presently two consumer fraud complaints filed against Driven Sports, Inc. pending in this Court, which have been deemed related cases: (1) Olvera v. Driven Sports, Inc. No. C 13-04830 EMC, and (2) Wagner v. Driven Sports, Inc. and General Nutrition Centers, Inc., Case No. 3:13-cv-05239-EMC.

         2. WHEREAS Jonathan Shub, Nick Suciu III, Michael Ram, and Beth Terrell shall be appointed co-lead counsel, and Michael Ram shall be appointed liaison counsel for purposes of communications with the Court and with counsel for other parties. Liaison counsel shall have the obligation to transmit communications between the Court and other counsel to all other Plaintiffs' counsel and shall have sole authority to bind co-lead counsel to representations and stipulations as if all co-lead counsel had made such representations or stipulations, unless liaison counsel expressly indicates at the time of the representation or stipulation that other co-lead counsel do not agree. In the event of persistent non-agreement by co-lead counsel, counsel for Defendants shall notify the Court. For purposes of scheduling, conferences of counsel, stipulations, and other administrative or procedural matters, counsel for Defendants need only confer with liaison counsel unless liaison counsel expressly advises Defendants that specific other counsel need to participate.

         3. WHEREAS both actions currently assert claims under California's Unfair Competition Act, Bus. & Prof. Code § 17200, et seq., California's Consumer Legal Remedies Act, Civ. Code § 1750, et seq., and California's False Advertising Law, Bus. & Prof. Code § 17500, et seq. based on allegations which Plaintiffs contend relate to the same uniform misrepresentation: Plaintiffs allege that Driven Sport's product, Craze (a pre-workout nutritional supplement), contains a known structural isomer of methamphetamine, and Defendants failed to disclose this harmful ingredient to Class members and that Driven Sports mislabeled Craze under federal and state law.

         4. WHEREAS, the parties agree that the two cases' allegations involve alleged common questions of fact and law, and/or otherwise appear to satisfy the requirements of Fed.R.Civ.P. 42(a) on the face of the pleadings, and therefore, pre-trial consolidation is not opposed by any party at this time.

         5. WHEREAS, the parties agree that, if the matters are consolidated by the Court, Plaintiffs shall file an amended consolidated class action complaint by May 15, 2014.

         6. WHEREAS, the parties agree that consolidation of these matters shall be for the purposes of pleading and litigation convenience to the parties and to the Court, and the parties reserve all substantive and procedural rights, including defenses based upon misjoinder and lack of commonality for purposes of class certification, trial and otherwise. Further, the parties specifically reserve and do not waive any and all rights to seek severance of these actions as discovery and events unfold, and specifically do not, at this time, stipulate to consolidate these actions for trial and/or waive any other rights to request separate trials of issues, claims, defenses, cross-claims and/or counter-claims pursuant to Federal Rule of Civil Procedure 42(b).

         7. THEREFORE, the parties agree that, subject to and without waiver of the foregoing, and based upon the existing allegations in the action, good cause exists for the Court to enter an order consolidating for pre-trial purposes the Olvera and Wagner actions at this time, based upon the existing pleadings, and requiring a consolidated amended complaint to be filed.

         [PROPOSED] ORDER

         PURSUANT TO STIPULATION, IT IS ORDERED THAT THE MATTERS ARE CONSOLIDATED FOR PRE-TRIAL LITIGATION PURPOSES AT THIS TIME.