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
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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,
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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,
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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
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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,
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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
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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., 51 F.4th 491, 503 (2d Cir. 2022). “When a district court invokes
the primary jurisdiction doctrine, our standard of review is likewise de novo.”
Id.
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“The federal courts have a ‘virtually unflagging obligation . . . to exercise
the jurisdiction given them.’” Palmer, 51 F.4th at 504 (quoting Tassy v. Brunswick
Hosp. Ctr., Inc., 296 F.3d 65, 73 (2d Cir. 2002)). The doctrine of primary
jurisdiction is a “‘relatively narrow’ exception to this obligation.” Id. (quoting
Goya Foods, Inc. v. Tropicana Prods., Inc., 846 F.2d 848, 851 (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., 443 F.3d 71, 81 (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.” Id. 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, 51 F.4th at 511 (quoting Ellis, 443 F.3d at
83); see also Nat’l Commc'ns Ass'n, Inc. v. Am. Tel. & Tel. Co., 46 F.3d 220, 225 (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., 651 F. Supp. 3d 629, 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.” Id.
But since the district court’s decision, the FDA has abandoned these
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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, 988 F.3d 618,
629 (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.
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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
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