1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 IN RE: S.C. JOHNSON & SON, INC. Case No. 20-cv-03184-HSG

8 WINDEX NON-TOXIC LITIGATION ORDER GRANTING MOTION TO STAY 9 Re: Dkt. No. 64 10 This Document Relates To: All Actions 11

12 13 Pending before the Court is Defendant S.C. Johnson & Son, Inc.’s motion to stay this 14 action pending final approval of the class settlement in Clark v. S.C. Johnson & Son, Inc., Case 15 No. RG20067897 in Alameda Superior Court (“Clark”). Dkt. No. 64. The Court finds this matter 16 appropriate for disposition without oral argument and the matter is deemed submitted. See Civil 17 L.R. 7-1(b). For the reasons detailed below, the Court GRANTS the motion. 18 I. BACKGROUND 19 The parties are familiar with the facts of this case, and the Court only briefly summarizes 20 them here as relevant to the pending motion to stay. 21 Plaintiffs Michelle Moran and Monica Waddell filed these consolidated actions against 22 Defendant S.C. Johnson & Son, Inc., alleging that it uses false and misleading labels representing 23 that certain of its Windex products have a “non-toxic formula.” See Dkt. No. 42 (“FAC”). 24 Plaintiffs allege that despite being labeled as “non-toxic,” these products contain ingredients that 25 are toxic to humans, animals, and/or the environment. See id. at ¶¶ 14, 25, 31, 44, 95. Based on 26 these facts, Plaintiffs assert causes of action under California’s Unfair Competition Law, Cal. Bus. 27 & Prof. Code §§ 17200, et seq.; False Advertising Law,

, et seq.; 1 of warranty and unjust enrichment. See

at ¶¶ 63–146. Plaintiffs also seek to represent a 2 nationwide class and a class of California consumers, defined as: 3 All residents of the United States who, within the applicable statute 4 of limitations periods, purchased the Products (“Nationwide Class”); and 5 All residents of California who, within four years prior to the filing of 6 this Complaint, purchase the products (“California Subclass”). 7

. 8 On July 15, 2020, Plaintiff Howard Clark filed a complaint in the Clark case in Alameda 9 Superior Court. See Dkt. No. 64-2, Ex. A. The Clark complaint alleges that Defendant 10 fraudulently advertised the same products as “Non-Toxic” in breach of the same warranties and in 11 violation of the same California statutes alleged in this action. See

The Clark action also 12 covers the same nationwide class and California subclass as this action. See

at ¶¶ 46–47. 13 Plaintiffs acknowledge the similarities, and describe the Clark action as a “copycat complaint.” 14 See Dkt. No. 71 at 2–3. Following mediation, the parties in Clark entered into a settlement 15 agreement on November 24, 2020. See Dkt. No. 71-6, Ex. 5. The proposed settlement includes a 16 $1.3 million settlement fund. See

at §§ 2.33, 4.1. Defendant has also agreed that it will 17 “manufactur[e] Products without unqualified ‘non-toxic’ claims on labels for Products having the 18 current formulations, and shall abide by all regulatory labeling standards, where applicable.” See 19 id. at § 4.5. The parties in Clark filed a motion for preliminary approval of the class action 20 settlement. See Dkt. No. 64-3, Ex. B. 21 Plaintiffs in this case estimate that class members will only receive approximately $.38 per 22 product under the Clark settlement, and describe the settlement as “woefully deficient,” 23 “horrible,” and “absurdly bad.” See Dkt. No. 71 at 3, 5. Plaintiffs state that they believe the 24 nationwide class of consumers in these cases “have suffered tens of millions of dollars in 25 losses . . . .” See id. at 13. Plaintiffs further contend that the Clark settlement constitutes a 26 “reverse auction,” see id. at 4, & n.3, which Judge Posner has described as a “practice whereby the 27 defendant in a series of class actions picks the most ineffectual class lawyers to negotiate a 1 other claims against the defendant.” See Reynolds v. Beneficial Nat’l Bank,

, 282 2 (7th Cir. 2002) (Posner, J.). Thus, after learning of the settlement, Plaintiff Moran moved to 3 intervene in the Clark case and filed an opposition to the motion for preliminary approval. See 4 Dkt. No. 71-1, (“Bruce Decl.”) at ¶ 12. Despite Plaintiff Moran’s concerns and over her objection, 5 the Clark court granted the motion for preliminary approval. See Dkt. No. 64-3, Ex. B. The 6 matter is scheduled for final settlement approval on December 7, 2021. See id. at 7. 7 Defendant filed this motion to stay pending the Clark court’s ruling on the motion for final 8 approval. Dkt. No. 64. 9 II. LEGAL STANDARD 10 A district court’s “power to stay proceedings is incidental to the power inherent in every 11 court to control the disposition of the causes on its docket with economy of time and effort for 12 itself, for counsel, and for litigants.” Landis v. N. Am. Co.,

(1936). To 13 determine whether a Landis stay is warranted, courts consider: (1) “the possible damage which 14 may result from the granting of a stay”; (2) “the hardship or inequity which a party may suffer in 15 being required to go forward”; and (3) “the orderly course of justice measured in terms of the 16 simplifying or complicating of issues, proof, and questions of law which could be expected to 17 result from a stay.” CMAX, Inc. v. Hall,

(9th Cir. 1962) (citing Landis, 299 18 U.S. at 254–55). “[I]f there is even a fair possibility that the stay for which [the requesting party] 19 prays will work damage to [someone] else,” then the party seeking a stay “must make out a clear 20 case of hardship or inequity in being required to go forward.” Landis,

. A district 21 court’s decision to grant or deny a Landis stay is a matter of discretion. See Dependable Highway 22 Express, Inc. v. Navigators Ins. Co.,

(9th Cir. 2007). 23 III. DISCUSSION 24 In its motion to stay these proceedings, Defendant argues that if the Clark court grants the 25 motion for final approval, that settlement will resolve this action for all class members who do not 26 opt out. Dkt. No. 64. A stay, Defendant urges, would therefore preserve resources and avoid 27 inconsistent rulings.

Plaintiffs oppose the motion. Dkt. No. 71. 1 bad faith to engineer a reverse auction settlement in Clark and that the Clark settlement is 2 fundamentally unfair. See

Plaintiffs further suggest that because of these deficiencies, the 3 settlement in Clark “is unlikely to receive final approval.” See, e.g., id. at 19. The Court senses 4 Plaintiffs’ frustration that they have devoted significant time to this case and that the Clark 5 settlement may undermine their efforts. However, this Court has no authority to decide whether to 6 approve the Clark settlement. See In re JPMorgan Chase LPI Hazard Litig., No. C-11-03058 7 JCS,

, at *4 (N.D. Cal. July 23, 2013) (rejecting plaintiffs’ allegations of 8 damage based on “sweetheart settlement” because “[t]he fairness of any settlement” in a separate 9 proceeding entailing approval processes “is not an issue properly before” the court granting the 10 stay). Plaintiff Moran has raised—and may continue to raise—her concerns before the Clark 11 court. As Plaintiffs acknowledge, the Clark court “specifically invited Moran to vet those 12 concerns . . . .” See

. 13 Plaintiffs also suggest that they will be prejudiced by a stay because of the passage of time 14 and the potential loss of evidence. See

at 18–19. But the Court is not persuaded by these 15 conclusory and unsupported concerns. The Court finds such arguments particularly unpersuasive 16 in light of the limited nature of the stay. There is simply no showing that a stay of approximately 17 six weeks will unduly prejudice or strategically disadvantage Plaintiffs in this action. In contrast, 18 the Court finds that there are considerable efficiencies to be gained by staying this action pending 19 final approval of the Clark settlement. If the Clark settlement is approved, then the scope of this 20 case may decrease significantly as the class claims may be resolved (though the Court need not 21 and does not here decide the not-yet-ripe question of exactly what impact approval in Clark would 22 have on this case). Plaintiffs Moran and Waddell may of course opt out of the settlement and 23 pursue their individual claims in this case, but there will be no need to budget time or resources for 24 class-wide discovery or class certification briefing. A stay therefore likely will conserve both the 25 parties’ and judicial resources. If the Clark settlement is denied, then the Court will set a further 26 case management conference to ensure the efficient adjudication of this case. The Court therefore 27 exercises its discretion to stay this action pending final approval of the Clark settlement (or denial 1 IV. CONCLUSION 2 Accordingly, the Court GRANTS the motion to stay this case in its entirety through 3 December 10, 2021. The Court further DIRECTS the parties to file a status report within 48 4 || hours of the grant or denial of the final approval motion in Clark. In addition to informing the 5 || Court about the outcome of the Clark case, the parties should identify any remaining issues for 6 adjudication in this case. 7 IT IS SO ORDERED. 8 || Dated: 10/27/2021 ° HAYWOOD S. GILLIAM, JR. 10 United States District Judge 11 12

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