Calling the lawsuit an Illinois man brought against Coca-Cola a "copycat" of previously filed suits in other jurisdictions, the soft drink giant has asked a judge to transfer the matter from Chicago’s federal court to the Northern District of California.
Attorneys Robert A. Clifford and Shannon M. McNulty of Clifford Law Offices in Chicago filed the proposed class action on behalf of Roland Sowizrol, who claims Coca-Cola's marketing of its namesake product was misleading.
Coca-Cola's motion to transfer, submitted late last month, includes a side-by-side comparison of 11 instances where Sowizrol's complaint is identical to Engurasoff v. The Coca-Cola Company and Coca-Cola Refreshments USA, Inc., a suit filed in August 2013 in the Northern District of California.
Chicago attorney George R. Dougherty of Grippo & Elden LLC filed the motion on behalf of Coca-Cola. Court records show New York attorney Steven A. Zalesin of Patterson is serving as of counsel for Coca-Cola and that Kristofer S. Riddle of Clifford Law Offices entered his appearance in the case for Sowizrol, shortly after the suit's filing.
Court records show Kristofer S. Riddle of Clifford Law Offices entered his appearance in the case for Sowizrol, shortly after his colleagues filed the suit.
While the Engurasoff complaint is the main case highlighted in the recent motion, Coca-Cola also points to four other suits it asserts are nearly identical to Sowizrol's suit.
Coca-Cola contends Sowizrol's "complaint is based on virtually identical allegations as the other five actions, and all six cases seek the same relief. Plaintiff Sowizrol is already represented in the nationwide classes sought in two of the related actions.”
Because of their near identicalness, the soft drink company alleges all six complaints are legally defective and subject to dismissal for the same reasons.
In August 2013, it filed a motion to dismiss in the Engurasoff case, the first of the six cases that was brought against Coca-Cola alleging misleading marketing. That motion is slated to be heard on June 20 by U.S. District Judge Jeffrey S. White in the Northern District of California.
U.S. District Judge Milton I. Shadur, who is presiding over Sowizrol's case in Chicago's federal court, last month continued Coca-Cola's transfer motion, as well as its request to stay proceedings, and set a June 27 status hearing in the matter.
Sowizrol's suit, as well as the five others mentioned in the motion to transfer, alleges that the soft drink company misled consumers by claiming Coca-Cola Classic contains “no artificial flavors. No preservatives added. Since 1886.”
Sowizrol and the other plaintiffs contend Coca-Cola Classic's claims regarding artificial flavors and preservatives are false since the beverage contains phosphoric acid, an ingredient that is not considered a natural additive under the federal Food, Drug and Cosmetic Act.
Coca-Cola doesn’t label it as an artificial flavor or preservative, however, because it is not required to do so by the Food and Drug Administration.
The plaintiffs claim Coca-Cola’s mislabeling was in response to lagging sales and “designed to fool consumers into the erroneous belief that their products were not artificially flavored or chemically preserved."
While Sowizrol and the other plaintiffs allege violations of various states’ statutes, Coca-Cola argues that the suits should be consolidated.
“Thus, even when cases arise under the laws of different states, consolidation is a sound reason for transfer when it furthers the efficient resolution of related claims and avoids the potential of inconsistent rulings,” Coca-Cola claims.
Additionally, Coca-Cola claims that precedent for such a transfer exists.
It explains that two of the six suits it cites in the motion as being nearly identical have already been transferred to the Northern District of California, meaning four of the six are under the jurisdiction of White.
“It would be a clear waste of judicial resources to require this Court to become familiar with the facts, apply the complex regulatory scheme that governs artificial flavors and chemical preservatives, and resolve Coca-Cola’s various preemption defenses, when Judge White is already tasked with resolving those exact same issues,” Coca-Cola asserts.
Beyond streamlining the judicial process and preventing the soft drink company from essentially defending the same lawsuit in various venues, Coca-Cola claims that transferring Sowizrol’s suit would benefit the public because it would prevent inconsistent rulings from court to court.
According to the motion, the cases currently before White in the Northern District of California are: Engurasoff; Nobles v. Coca-Cola Refreshments USA, Inc., et al; Merritt v. BCI Coca-Cola Bottling Company of Los Angeles, et al.; and Aumiller v. The Coca-Cola Company, et al.
Nobles was brought on Oct. 28, 2013 in the Northern District of California; Meritt was filed Oct. 7, 2013 in the San Diego Superior Court for the State of California; and Aumiller was filed Jan. 9 in the Northern District of Florida.
Meritt and Aumiller were later transferred to the Northern District of California and then White ordered that they, along with Nobles, be reassigned to him after concluding they were related to the Engurasoff action he was already presiding over.
Besides the four cases pending before White and Sowizrol's suit in Chicago's federal court, Lazaroff v. The Coca-Cola Company, et al. was filed March 18 in the Eastern District of New York. Coca-Cola states in its recent motion that it moved to transfer that case to the Northern District of California on April 11.