Hohenberg v. Ferrero USA, Inc

Filing 56

SUPPLEMENTAL BRIEFING by Plaintiffs Athena Hohenberg, Laura Rude-Barbato re 51 MOTION for Class Certification. (Attachments: # 1 Declaration Corrected Declaration of Gregory S. Weston in Support of Motion for Class Certification, # 2 Exhibit 5, # 3 Exhibit 6, # 4 Exhibit 7, # 5 Exhibit 8, # 6 Exhibit 9, # 7 Exhibit 10, # 8 Exhibit 11, # 9 Exhibit 12, # 10 Exhibit 18, # 11 Exhibit 19, # 12 Exhibit 20, # 13 Exhibit 21, # 14 Exhibit 23, # 15 Exhibit 25, # 16 Exhibit 27, # 17 Exhibit 28, # 18 Exhibit 29, # 19 Exhibit 31)(Fitzgerald, John) (lmt).

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1 LAW OFFICES OF RONALD A. MARRON, APLC 2 RONALD A. MARRON (175650) 3636 4th Avenue, Suite 202 3 San Diego, CA 92109 4 Telephone: (619) 696 9066 Facsimile: (619) 564 6665 5 ron.marron@gmail.com 6 7 THE WESTON FIRM GREGORY S. WESTON (239944) JACK FITZGERALD (257370) MELANIE PERSINGER (275423) 888 Turquoise Street San Diego, CA, 92109 Telephone: (858) 488 1672 Facsimile: (480) 247 4553 greg@westonfirm.com jack@westonfirm.com mel@westonfirm.com 8 Interim Class Counsel 9 10 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA 11 12 13 IN RE FERRERO LITIGATION CASE NO. 3:11-CV-00205 H CAB Pleading Type: Class Action Action Filed: February 01, 2011 14 15 16 17 18 19 20 DECLARATION OF GREGORY S. WESTON IN SUPPORT OF PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION Judge: Hon. Marilyn L. Huff Date: October 11, 2011 Time: 10:30 a.m. Location: Courtroom 13 21 22 23 24 25 26 27 In Re Ferrero Litigation, Case No. 3:11-cv-00205 H (CAB) DECLARATION OF GREGORY S. WESTON 1 I, Gregory S. Weston, declare: 2 PART I 3 EXHIBITS RELATING TO PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION 4 1. Attached hereto as Exhibit 1 is a true and correct copy Defendant’s Response to 5 Interrogatory No. 8, designated by Ferrero as “HIGHLY CONFIDENTIAL.” Accordingly, 6 Exhibit 1 is being filed under seal. 7 2. Attached hereto as Exhibit 2 is a true and correct copy of excerpts from the 8 deposition of Connie L. Evers, dated July 26, 2011 and designated by Ferrero as 9 “CONFIDENTIAL.” Accordingly, Exhibit 2 is being filed under seal. 10 3. Attached hereto as Exhibit 3 is a true and correct copy of a document titled 11 “ATTACHMENT C,” which contains quarterly advertising and promotional spending data for 12 Nutella during the years 2007 through 2010. Exhibit 3 was labeled at the April 14, 2011 13 deposition of Bernard Kreilmann, Nutella’s CEO, as “Plaintiff’s Exhibit 7,” and is designated by 14 Ferrero as “CONFIDENTIAL.” Accordingly, Exhibit 3 is being filed under seal. 15 4. Attached hereto as Exhibit 4 is a true and correct copy of a document titled 16 “ATTACHMENT A,” which contains quarterly net sales data for Nutella during the years 2007 17 through 2010. Exhibit 4 was marked at the Kreilmann deposition as “Plaintiff’s Exhibit 5” and is 18 designated by Ferrero as “CONFIDENTIAL.” Accordingly, Exhibit 4 is being filed under seal. 19 5. Attached hereto as Exhibit 5 is a true and correct copy of an email chain bearing 20 production number CEVERS953, which was produced by third-party Connie Evers. 21 6. Attached hereto as Exhibit 6 is a true and correct copy of a print advertisement 22 for Nutella which, upon information and belief, appeared in national print magazines, including 23 Parents. 24 7. Attached hereto as Exhibit 7 is a true and correct copy of a print advertisement 25 for Nutella which, upon information and belief, appeared in national print magazines, including 26 Parenting – School Years. 27 1 In Re Ferrero Litigation, Case No. 3:11-cv-00205 H (CAB) DECLARATION OF GREGORY S. WESTON 1 8. Attached hereto as Exhibit 8 is a true and correct copy of a print advertisement 2 for Nutella which, upon information and belief, appeared in national print magazines, including 3 Woman’s day. 4 9. Attached hereto as Exhibit 9 is a true and correct copy of an email chain bearing 5 production numbers CEVERS221, which was produced by third-party Connie Evers. 6 10. Attached hereto as Exhibit 10 is a true and correct copy of an email chain bearing 7 production numbers CEVERS 946-47, which was produced by third-party Connie Evers, and 8 designated by Evers as “CONFIDENTIAL.” Accordingly, Exhibit 10 is being filed under seal. 9 11. Attached hereto as Exhibit 11 is a true and correct copy of an email chain bearing 10 production numbers CEVERS246-47, and marked at the July 26, 2011 deposition of Ms. Evers 11 as “Plaintiffs’ Exhibit 43.”1 Exhibit 11 was produced by third-party Connie Evers. 12 12. Attached hereto as Exhibit 12 is a true and correct copy of an article titled 13 “Perfect Snacks to Stock Up on for a Trip,” appearing at the Nickelodeon website, 14 ParentsConnect.com, and marked at the Evers deposition as “Plaintiffs’ Exhibit 33.” 15 13. Attached hereto as Exhibit 13 is a true and correct copy of an executed 16 November 17, 2009 Spokesperson Agreement between Connie Evers and MS&L, as agent for 17 Ferrero, bearing production numbers CEVERS847-51, and marked at the Evers deposition as 18 “Plaintiffs’ Exhibit 25.” Exhibit 13 was produced by third-party Connie Evers, and designated by 19 Evers as “CONFIDENTIAL.” Accordingly, Exhibit 13 is being filed under seal. 20 14. Attached hereto as Exhibit 14 is a true and correct copy of an email chain bearing 21 production numbers CEVERS43-48, and marked at the Evers deposition as “Plaintiffs’ Exhibit 22 20.” Exhibit 14 was produced by third-party Connie Evers, and designated by Evers as 23 “CONFIDENTIAL.” Accordingly, Exhibit 14 is being filed under seal. 24 1 Because of the short time between Ms. Evers’ deposition and the filing of this Motion, Plaintiffs have not yet received marked copies of the Evers deposition exhibits. Therefore, for the 26 purposes of this Motion, Plaintiffs file non-marked copies of the identical documents that were marked as exhibits during the deposition. 27 2 In Re Ferrero Litigation, Case No. 3:11-cv-00205 H (CAB) DECLARATION OF GREGORY S. WESTON 25 1 15. Attached hereto as Exhibit 15 is a true and correct copy of an email chain bearing 2 production numbers CEVERS49-60, and marked at the Evers deposition as “Plaintiffs’ Exhibit 3 21.” Exhibit 15 was produced by third-party Connie Evers, and designated by Evers as 4 “CONFIDENTIAL.” Accordingly, Exhibit 15 is being filed under seal. 5 16. Attached hereto as Exhibit 16 is a true and correct copy of a document titled 6 “Nutella Recommended Opinion Leaders for Industry Briefings,” bearing production numbers 7 CEVERS117-21, which was produced by third-party Connie Evers, and designated by Evers as 8 “CONFIDENTIAL.” Accordingly, Exhibit 16 is being filed under seal. 9 17. Attached hereto as Exhibit 17 is a true and correct copy of an email chain bearing 10 production numbers CEVERS103-110, and marked at the Evers deposition as “Plaintiffs’ Exhibit 11 35.” Exhibit 17 was produced by third-party Connie Evers, and designated by Evers as 12 “CONFIDENTIAL.” Accordingly, Exhibit 17 is being filed under seal. 13 18. Attached hereto as Exhibit 18 is a true and correct copy of an email chain bearing 14 production number CEVERS185, which was produced by third-party Connie Evers. 15 19. Attached hereto as Exhibit 19 is a true and correct copy of an email chain bearing 16 production numbers CEVERS1068-70, which was produced by third-party Connie Evers. 17 20. Attached hereto as Exhibit 20 is a true and correct copy of an email chain bearing 18 production numbers CEVERS1155-57, which was produced by third-party Connie Evers, and 19 designated by Evers as “CONFIDENTIAL.” Accordingly, Exhibit 20 is being filed under seal. 20 21. Attached hereto as Exhibit 21 is a true and correct copy of an email chain bearing 21 production number CEVERS1045, and marked at the Evers deposition as “Plaintiffs’ Exhibit 22 48.” Exhibit 21 was produced by third-party Connie Evers. 23 22. Attached hereto as Exhibit 22 is a true and correct copy of an email chain bearing 24 production numbers CEVERS1028-31, and marked at the Evers deposition as “Plaintiffs’ Exhibit 25 44.” Exhibit 22 was produced by third-party Connie Evers, and designated by Evers as 26 “CONFIDENTIAL.” Accordingly, Exhibit 22 is being filed under seal. 27 3 In Re Ferrero Litigation, Case No. 3:11-cv-00205 H (CAB) DECLARATION OF GREGORY S. WESTON 1 23. Attached hereto as Exhibit 23 is a true and correct copy of an email chain bearing 2 production numbers CEVERS278-87, and marked at the Evers deposition as “Plaintiffs’ Exhibit 3 63.” Exhibit 23 was produced by third-party Connie Evers. 4 24. Attached hereto as Exhibit 24 is a true and correct copy of an email chain bearing 5 production numbers CEVERS537-41, and marked at the Evers deposition as “Plaintiffs’ Exhibit 6 52.” Exhibit 24 was produced by third-party Connie Evers, and designated by Evers as 7 “CONFIDENTIAL.” Accordingly, Exhibit 24 is being filed under seal. 8 25. Attached hereto as Exhibit 25 is a true and correct copy of an email chain bearing 9 production numbers CEVERS271-77, and marked at the Evers deposition as “Plaintiffs’ Exhibit 10 77.” Exhibit 25 was produced by third-party Connie Evers, and designated by Evers as 11 “CONFIDENTIAL.” Accordingly, Exhibit 25 is being filed under seal. 12 26. Attached hereto as Exhibit 26 is a true and correct copy of an email bearing 13 production number CEVERS595, which was produced by third-party Connie Evers, and 14 designated by Evers as “CONFIDENTIAL.” Accordingly, Exhibit 26 is being filed under seal. 15 27. Attached hereto as Exhibit 27 is a true and correct copy of an email chain bearing 16 production numbers CEVERS1114-15, and marked at the Evers deposition as “Plaintiffs’ Exhibit 17 79.” Exhibit 27 was produced by third-party Connie Evers. 18 28. Attached hereto as Exhibit 28 is a true and correct copy of an email chain bearing 19 production number CEVERS974, and marked at the Evers deposition as “Plaintiffs’ Exhibit 56.” 20 Exhibit 28 was produced by third-party Connie Evers, and designated by Evers as 21 “CONFIDENTIAL.” Accordingly, Exhibit 28 is being filed under seal. 22 29. Attached hereto as Exhibit 29 is a true and correct copy of an email chain bearing 23 production number CEVERS973, and marked at the Evers deposition as “Plaintiffs’ Exhibit 57.” 24 Exhibit 29 was produced by third-party Connie Evers, and designated by Evers as 25 “CONFIDENTIAL.” Accordingly, Exhibit 29 is being filed under seal. 26 27 4 In Re Ferrero Litigation, Case No. 3:11-cv-00205 H (CAB) DECLARATION OF GREGORY S. WESTON 1 30. Attached hereto as Exhibit 30 is a true and correct copy of an email chain bearing 2 production numbers CEVERS5-7, and marked at the Evers deposition as “Plaintiffs’ Exhibit 18.” 3 Exhibit 30 was produced by third-party Connie Evers, and designated by Evers as 4 “CONFIDENTIAL.” Accordingly, Exhibit 30 is being filed under seal. 5 31. Attached hereto as Exhibit 31 is a true and correct copy of an email chain bearing 6 production number CEVERS265, which was produced by third-party Connie Evers, and 7 designated by Evers as “CONFIDENTIAL.” Accordingly, Exhibit 31 is being filed under seal. 8 32. Attached hereto as Exhibit 32 is a true and correct copy of a draft Spokesperson 9 Agreement, dated October 12, 2009, bearing production numbers CEVERS38-42, which was 10 produced by third-party Connie Evers, and designated by Evers as “CONFIDENTIAL.” 11 Accordingly, Exhibit 32 is being filed under seal. 12 33. Attached hereto as Exhibit 33 is a true and correct copy of a document titled 13 “NUT SPREADS PANEL KPI SUMMARY – ENDING 12/26/10,” bearing production numbers 14 FERRERO21-22, and marked at the Kreilmann deposition as “Plaintiff’s Exhibit 17.” Exhibit 33 15 is designated by Ferrero as “CONFIDENTIAL.” Accordingly, Exhibit 33 is being filed under 16 seal. 17 34. Attached hereto as Exhibit 34 is a true and correct copy of excerpts from the 18 deposition of Bernard F. Kreilmann, dated April 14, 2011 and designated by Ferrero as 19 “CONFIDENTIAL.” Accordingly, Exhibit 34 is being filed under seal. 20 PART II 21 EXPERIENCE AND QUALIFICATIONS OF GREGORY S. WESTON AND THE 22 WESTON FIRM 23 35. I am a member in good standing of the State Bars of California and Florida, and 24 the United States District Courts for the Northern, Central and Southern Districts of California. I 25 make this Declaration in support of Plaintiff’s Motion for Class Certification and Appointment 26 of Class Counsel. 27 5 In Re Ferrero Litigation, Case No. 3:11-cv-00205 H (CAB) DECLARATION OF GREGORY S. WESTON 1 36. I am a graduate of Ohio State University and Harvard Law School and have 2 always devoted all or substantially all of my practice to representing plaintiffs in class actions. 3 37. On June 14, 2011, the Honorable Richard Seeborg appointed the Weston Firm, 4 together with the Law Offices of Ronald A. Marron, Interim Class Counsel, in a contested 5 proceeding. See Chacanaca v. Quaker Oats Co., 2011 U.S. Dist. LEXIS 65023, at *8-9 (N.D. 6 Cal. June 14, 2011) (“There is no question here that both the Weston/Marron counsel . . . have 7 ample experience handling class actions and complex litigation. It is also clear that both have 8 particular familiarity with suits involving issues of mislabeling in the food industry.”). 9 38. Additionally, the Weston Firm was recently appointed Class Counsel in the matter 10 of Red et al. v. Unilever United States et al., No. CV 10-0387 JW (N.D. Cal.), an action 11 challenging the labeling of Unilever margarine products containing trans fat. Judge Ware 12 recently granted final approval to a nationwide class settlement that requires Unilever to remove 13 all trans fat from its entire margarine portfolio, including Imperial, Brummel & Brown, I Can’t 14 Believe It’s Not Butter! and numerous generic and regional brands. 15 39. Moreover, the Weston Firm was appointed Interim Class Counsel, together with 16 Lieff Cabraser, to represent purchases of Apple iPad 3Gs in an action alleging a “bait and 17 switch” scheme concerning the promise by Apple and AT&T Mobility of an unlimited 3G data 18 plan, in In re Apple and AT&T iPad Unlimited Data Plan Litig., Case No. 10-02553 RMW (N.D. 19 Cal.) (Dkt. No. 79). 20 40. The Weston Firm was also appointed sole Class Counsel to represent purchasers 21 of approximately 145 condominiums in Adachi et al. v. Carlyle/Galaxy San Pedro L.P. et al., 22 No. 09-793 (C.D. Cal.), which settled in 2009 on a class-wide all-cash basis for approximately 23 $1.35 million. 24 41. Before founding the Weston Firm, as an attorney at the firm now called Robbins, 25 Geller, Rudman & Dowd (“RGR&D”), I represented plaintiffs in the following class actions: 26 27 • The Apple iPod iTunes Antitrust Litigation (N.D. Cal.) (nationwide consumer class certified and RGR&D appointed class counsel) 6 In Re Ferrero Litigation, Case No. 3:11-cv-00205 H (CAB) DECLARATION OF GREGORY S. WESTON • Bruce v. Crompton Corp. (Los Angeles County Super. Ct.) 1 • In re Carbon Black Antitrust Litigation (D. Mass.) 2 • In re Digital Music Antitrust Litigation (S.D.N.Y.) (RGR&D appointed interim class counsel) 3 4 • In re Graphics Processing Units Antitrust Litigation (N.D. Cal.) 5 • In re International Air Transportation Surcharge Antitrust Litigation (N.D. Cal.) 6 7 • In re Medical Waste Services Antitrust Litigation (D. Utah) (RGR&D appointed interim class counsel) 8 • Ross et al. v. Metropolitan Life Insurance Company (W.D. Pa.) 9 • Williams v. Interinsurance Exchange of the Automobile Club (San Diego County Super. Ct.) (California consumer class certified, RGR&D appointed class counsel) 10 11 42. This year my firm has obtained a number of favorable decisions in several actions 12 challenging “health and wellness” labeling of foods made with unhealthy ingredients, like trans 13 fat, including a recent decision denying Defendant Kraft Foods’ motion to dismiss the Second 14 Amended Complaint in Red et al. v. Kraft Foods, Inc., et al., 2010 U.S. Dist. LEXIS 122849 15 (C.D. Cal. Nov. 18, 2010). 16 43. In Yumul v. Smart Balance, Inc. 733 F. Supp. 2d 1117 (C.D. Cal. 2010) and 17 Yumul v. Smart Balance, Inc. 2010 U.S. Dist. LEXIS 116960 (C.D. Cal. Oct. 8, 2010), the Court 18 denied a motion to dismiss a complaint challenging the labeling of margarine containing trans 19 fat, holding that plaintiff had adequately alleged deception. The Court further denied the 20 defendant’s challenge to a class period extending back ten years, holding the complaint 21 adequately alleged tolling of the statute under the delayed discovery rule. 22 44. In a 40-page Tentative Order dated July 25, 2011, the Honorable Margaret M. 23 Morrow also certified a nationwide class of purchasers of Nucoa Real Margarine beginning 24 January 1, 2000 and extending through class notice (i.e., an 11+ year class), in the matter of 25 Yumul v. Smart Balance, Inc., No. 10-927 (C.D. Cal.). Judge Morrow also tentatively appointed 26 the Weston Firm Class Counsel. Although the Order has not yet been finalized, we expect the 27 7 In Re Ferrero Litigation, Case No. 3:11-cv-00205 H (CAB) DECLARATION OF GREGORY S. WESTON 1 Court will follow its tentative ruling, and expect to cite the decision in Plaintiffs’ upcoming 2 Reply in Support of Class Certification. 3 45. In Chacanaca v. The Quaker Oats Co., 752 F. Supp. 1111 (N.D. Cal. 2010), the 4 Honorable Richard Seeborg found certain health claims on Quaker Oats granola bar products 5 containing trans fat actionable under California’s UCL, FAL and CLRA. 6 46. In Henderson v. J.M. Smucker Co., 2011 U.S. Dist. LEXIS 27953 (C.D. Cal. Mar. 7 17, 2011), the Honorable George H. King largely denied a defendant’s motion to dismiss claims 8 that it’s Crisco vegetable shortening and other packaged foods contained misleading health 9 claims in light of the products’ trans fat content. 10 47. In Henderson v. Gruma Corp., 2011 U.S. Dist. LEXIS 41077 (C.D. Cal. Apr. 11, 11 2011), the Honorable A. Howard Matz held claims that representations on Guacamole and Bean 12 Dip containing trans fat were actionable under the UCL, FAL and CLRA. 13 48. In addition to these decisions, the Weston Firm recently obtained a favorable 14 decision on behalf of a putative consumer class from this Court in Peviani v. Natural Balance, 15 Inc., 2011 U.S. Dist. LEXIS 18110 (S.D. Cal. Feb. 24, 2011), denying in full a defendant’s 16 motion to dismiss an action challenging the advertising and sale of a “natural herbal” dietary 17 supplement drug that makes false and deceptive claims about its effectiveness as an aphrodisiac 18 49. The Weston Firm is also counsel for a proposed class of deaf and hard-of-hearing 19 consumers in an action alleging violations of the Americans with Disabilities Act, false 20 advertising, and unlawful business practices, against Netflix, Inc., in an action styled Cullen v. 21 Netflix, Inc., No. 11-cv-1199-HRL (N.D. Cal.). 22 50. In sum, the Weston Firm has dedicated substantial resources and efforts to 23 prosecuting consumer fraud similar to those in this case, especially against food manufacturers 24 who deceivingly label products containing toxic artificial trans fat in a manner that implies the 25 products are nevertheless healthy, and against companies that engage in unlawful or unfair 26 27 8 In Re Ferrero Litigation, Case No. 3:11-cv-00205 H (CAB) DECLARATION OF GREGORY S. WESTON 1 business practices. This provides the Weston Firm with the benefits of expertise in the subject 2 area and economies of scale that will benefit the Class. 3 51. My firm and I are fully committed to prosecuting this action against Ferrero, Inc. 4 to achieve a successful outcome for the Class, and have the means and resources to do so. 5 6 I declare under penalty of perjury of the laws of the United States that the foregoing is 7 true and correct. 8 9 10 Executed on August 15, 2011, in San Diego, California. /s/ Gregory S. Weston Gregory S. Weston 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 9 In Re Ferrero Litigation, Case No. 3:11-cv-00205 H (CAB) DECLARATION OF GREGORY S. WESTON 1 DATED: August 15, 2011 Respectfully Submitted, 2 3 /s/Jack Fitzgerald Jack Fitzgerald 4 5 6 7 8 9 10 11 12 13 THE WESTON FIRM GREGORY S. WESTON JACK FITZGERALD MELANIE PERSINGER 888 Turquoise Street San Diego, CA 92109 Telephone: 858 488 1672 Facsimile: 480 247 4553 LAW OFFICES OF RONALD MARRON, APLC RONALD A. MARRON 3636 4th Street, Suite 202 San Diego, CA 92103 Telephone: 619 696 9066 Facsimile: 619 564 6665 14 15 Interim Class Counsel 16 17 18 19 20 21 22 23 24 25 26 27 10 In Re Ferrero Litigation, Case No. 3:11-cv-00205 H (CAB) DECLARATION OF GREGORY S. WESTON A.