23-220-cv White et al. v. Beech-Nut Nutrition Co.

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 18th day of January, two thousand twenty-four.

PRESENT: GUIDO CALABRESI, ALISON J. NATHAN, Circuit Judges, SARALA V. NAGALA, District Judge. * _____________________________________

Jordan White, Robert Partello, Erin Abdoo, Bridget Salopek, Olivia Boyer, Rebecca George, Corinthea Pangelinan, Elizabeth Austin, Stephanie Norgaard, Amanda Schram, LaToya McHenry, Erica

* Judge Sarala V. Nagala, of the United States District Court for the District of Connecticut, sitting by designation. Douglas, Tabitha Latteyer, Morgan Engebretsen, McGlinchKali, Amanda Rogers, Maurice Peterson, Sheila Curry, Katherine McGibney, Natalie Francois, Heather Malaga, Tamaya Stevenson, Liza Sike, Karleen Kozaczka, Mayelin Carranza, Ana Butkus, Monique Warren, Celia Bruno, Samantha Clark, Elizabeth McDowell, Jill Hayden, Brandi Slabinski, Kelsey Blankenship, Sammi Hobdy, Lisa Fisher, Porsche Stokes, Melanie Cole, Kinder Smith, Loukevia Moore, Xena Almquist, Nathan Edwards, Shaylan Isaacs, Albachiara Farci, Amber Wright, Christen Zulli, Krishna Patel, Derrick Carr, Malik Hockaday, Ashley Yates, Charita Harrell, Brittany Wallace, Andrew Lohse, Adrianne Cooper, Alyssa Megan Barb, Rebecca Abbott, Christina Mitchell, Brittney Moyer, Amanda Holmes, Amanda Boots, Dillon Townzen, Natalie Williams, Christina Allgood, AKA Christina Holland,

Plaintiffs-Appellants,

Jeremy Cantor, on behalf of themselves and all others similarly situated, Heather Hyden, on behalf of themselves and all others similarly situated, Haley Sams, on behalf of

2 themselves and all others similarly situated, Vito Scarola, on behalf of themselves and all others similarly situated, Emily Baccari, on behalf of themselves and all others similarly situated, Jillian Geffken, on behalf of themselves and all others similarly situated, Kaitlynn Carson, on behalf of themselves and all others similarly situated,

Consul Plaintiffs- Appellants,

Laurie Thomas, individually and on behalf of all others similarly situated, Alison Kavulak, individually and on behalf of all others similarly situated, Jen MacLeod, individually and on behalf of all others similarly situated, Mary Narvaez, individually and on behalf of all others similarly situated, Alison Fleissner, individually and on behalf of all others similarly situated, Emily Bigaouette, individually and on behalf of all others similarly situated, Laura Eggnatz, individually and on behalf of all others similarly situated, Teresa Hagmaier, individually and on behalf of all others similarly situated, Nicole Fallon, individually and on behalf of all others similarly situated,

Plaintiffs,

3 Laura Peek, individually and on behalf of all others similarly situated, Robyn Moore, individually and on behalf of all others similarly situated, Gabrielle Stuve, individually and on behalf of all others similarly situated, Mattia Doyle, on behalf of himself and all other similarly situated, Lee Boyd, individually and on behalf of all others similarly situated, Ashley Allen, on behalf of themselves and all others similarly situated, Dominick Grossi, on behalf of themselves and all others similarly situated, Anthony Harrison, on behalf of themselves and all others similarly situated, Neisha Daniels, on behalf of themselves and all others similarly situated, Heather McCormick, on behalf of themselves and all others similarly situated, Hannah Grandt, on behalf of themselves and all others similarly situated, Amber Caudill, on behalf of themselves and all others similarly situated, Michael Motherway, individually and on behalf of all others similarly situated, Kathey Henry, individually and on behalf of all others similarly situated, Kelsey Gancarz, individually and on behalf of all others similarly situated, Atahsia Smiley, individually and on behalf of all others similarly situated,

4 Najah A. Henry, individually and on behalf of all others similarly situated, Chanel J. Jackson, individually and on behalf of all others similarly situated, Alexis Dias, individually and on behalf of all others similarly situated, Holly Buffinton, individually and on behalf of all others similarly situated, Constance Venable, individually and on behalf of all others similarly situated, Teresa Wilson, individually, and on behalf of all others similarly situated, Ryan Sanders, individually, and on behalf of all others similarly situated, Susan Canada, individually, and on behalf of all others similarly situated, Tabatha Sidi, individually, and on behalf of all others similarly situated, Tiffanie Skibicki, individually, and on behalf of all others similarly situated, Heather Age, individually, and on behalf of all others similarly situated, Jolina Manley, individually, and on behalf of all others similarly situated, Jessica David, individually, and on behalf of all others similarly situated, Cassandra Martell, individually, and on behalf of all others similarly situated, Mieshia Douglas, individually, and, Jessica Loggins, on behalf of herself and all others similarly situated, Ana Lynette Gregory Eldridge, individually and

5 on behalf of all others similarly situated, Emily Orsak, on behalf of themselves and a class of all others similarly situated, Julie Chatagnier, on behalf of themselves and a class of all others similarly situated, Marie Mezile, individually and on behalf of all others similarly situated, Alyssa Rose, on behalf of themselves and all others similarly situated, Myjorie Philippe, on behalf of themselves and all others similarly situated, Melissa Sisk, on behalf of themselves and all others similarly situated, Vanessa Inoa, on behalf of themselves and all others similarly situated, Asyia Andrews, individually and on behalf of all others similarly situated, Stacia Cullors, an individual, L. C., through their guardian ad litem Stacia Cullors, V. C., through their guardian ad litem Stacia Cullors, Anthony Bacani, an individual, D. B., through their guardian ad litem Anthony Bacani, E. B., through their guardian ad litem Anthony Bacani, Jennifer Cullors, an individual, A. C., through their guardian ad litem Jennifer Cullors, J. C., through their guardian ad litem Jennifer Cullors, N. C., through their guardian ad litem Stacia Cullors,

Consul Plaintiffs,

6 v. 23-220-cv

Beech-Nut Nutrition Company,

Defendant-Appellee. _____________________________________

FOR PLAINTIFFS-APPELLANTS: STEVEN L. BLOCH, Silver Golub & Teitell LLP, Burlington VT (Erin Green Comite, Scott + Scott Attorney at Law LLP, Colchester, CT, on the brief).

FOR DEFENDANT-APPELLEE: ASHLEY C. PARRISH, King & Spalding LLP, Washington, DC (Keri E. Borders and Rebecca B. Johns, King & Spalding LLP, Los Angeles, CA, Livia M. Kiser, King & Spalding LLP, Chicago, IL, on the brief).

Appeal from a judgment of the United States District Court for the

Northern District of New York (Hurd, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgment of the district court is

VACATED and REMANDED.

Plaintiffs-Appellants appeal from the district court’s order dismissing

7 their claims without prejudice in deference to the Food and Drug Administration

(FDA) under what is known as the primary jurisdiction doctrine. Plaintiffs

brought a putative class action against Defendant-Appellee Beech-Nut Nutrition

Company (Beech-Nut), a baby food manufacturer, alleging seventy counts based

on Beech-Nut’s sale of baby food products allegedly containing elevated levels

of certain toxic metals. Beech-Nut filed a motion to dismiss, or alternatively

sought to stay the lawsuit, arguing that the FDA had primary jurisdiction over

Plaintiffs’ claims. The district court agreed and dismissed Plaintiffs’ claims

without prejudice. We assume the parties’ familiarity with the remaining

underlying facts and the record of prior proceedings, to which we refer only as

necessary to explain our decision.

“We review de novo a district court's grant of a motion to dismiss under

Rules 12(b)(1) and 12(b)(6), accepting the allegations in the complaint as true and

drawing all reasonable inferences in favor of the plaintiff.” Palmer v.

Amazon.com, Inc.,

(2d Cir. 2022). “When a district court invokes

the primary jurisdiction doctrine, our standard of review is likewise de novo.”

8 “The federal courts have a ‘virtually unflagging obligation . . . to exercise

the jurisdiction given them.’” Palmer,

(quoting Tassy v. Brunswick

Hosp. Ctr., Inc.,

(2d Cir. 2002)). The doctrine of primary

jurisdiction is a “‘relatively narrow’ exception to this obligation.”

(quoting

Goya Foods, Inc. v. Tropicana Prods., Inc.,

(2d Cir. 1988)). The

primary jurisdiction doctrine is “concerned with promoting proper relationships

between the courts and administrative agencies charged with particular

regulatory duties” by “allocat[ing] initial decisionmaking responsibility between

courts and agencies.” Ellis v. Trib. Television Co.,

(2d Cir. 2006)

(cleaned up).

Although “[n]o fixed formula exists for applying the doctrine of primary

jurisdiction,” the Second Circuit has historically considered the four Ellis factors:

“(1) whether the question at issue is within the conventional experience of judges

or whether it involves technical or policy considerations within the agency’s

particular field of expertise; (2) whether the question at issue is particularly

within the agency’s discretion; (3) whether there exists a substantial danger of

inconsistent rulings; and (4) whether a prior application to the agency has been

9 made.”

at 82–83 (quotation marks omitted). In addition to considering the

Ellis factors, “we must also ‘balance the advantages of applying the doctrine

against the potential costs resulting from complications and delay in the

administrative proceedings.’” Palmer,

(quoting Ellis,

); see also Nat’l Commc'ns Ass'n, Inc. v. Am. Tel. & Tel. Co.,

(2d

Cir. 1995).

Here, we need not weigh the Ellis factors because we conclude that any

advantages of deferring to the FDA under the primary jurisdiction doctrine are

outweighed by the potential costs resulting from the delay in administrative

proceedings. In deferring under the primary jurisdiction doctrine, the district

court reasoned that the FDA is presently working on its initiative, Closer to Zero:

Action Plan for Baby Foods (Action Plan). See In re Beech-Nut Nutrition Co. Baby

Food Litig.,

, 636 (N.D.N.Y. 2023). The district court explained

that under the Action Plan, “by April 2024, the FDA plans to finalize action levels

for lead and propose action levels for arsenic, with cadmium and mercury

consideration and decisions to follow.”

But since the district court’s decision, the FDA has abandoned these

10 previously announced timelines. See Closer to Zero: Reducing Childhood Exposure

to Contaminants from Food, FDA (Dec. 18, 2023),

https://www.fda.gov/food/environmental-contaminants-food/closer-zero-

reducing-childhood-exposure-contaminants-foods [https://perma.cc/7HJN-

LXR6]. The FDA no longer expects to finalize lead action levels in April 2024

and has also revised its expected timeline for issuing draft guidance on proposed

action levels for arsenic and cadmium. For arsenic and cadmium, the FDA now

indicates only that it expects to reach the interagency review process sometime

in 2024—a step that precedes issuing draft guidance. Given the delays in even

proposing action levels, the agency has unsurprisingly provided no timelines for

when it expects to finalize action levels.

While this type of agency decisionmaking is typically time-consuming,

deferring to the FDA would “unnecessarily prolong [this] case,” likely for

upwards of several years. See Seneca Nation of Indians v. New York,

(2d Cir. 2021). On balance, we conclude that the potential costs resulting

from these indefinite delays outweigh any possible benefits that could be

obtained from deferring to the agency.

11 For the forgoing reasons, we VACATE the judgment of the district court

and REMAND for further proceedings.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court

12