Hohenberg v. Ferrero USA, Inc

Filing 61

RESPONSE in Opposition re 48 MOTION to Dismiss First Amended Consolidated Complaint filed by Athena Hohenberg, Laura Rude-Barbato. (Fitzgerald, John) (lao).

1 2 3 4 5 LAW OFFICES OF RONALD A. MARRON, APLC RONALD A. MARRON (175650) 3636 4th Avenue, Suite 202 San Diego, California 92103 Telephone: (619) 696-9006 Facsimile: (619) 564-6665 ron.marron@gmail.com 6 7 8 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 INTERIM CLASS COUNSEL 9 10 UNITED STATES DISTRICT COURT 11 SOUTHERN DISTRICT OF CALIFORNIA 12 13 14 IN RE FERRERO LITIGATION Case No.: 3:11-CV-00205-H-CAB PLAINTIFFS’ OPPOSITION TO DEFENDANT’S MOTION TO DISMISS 15 Judge: The Honorable Marilyn L. Huff 16 17 18 Hearing Date: June 13, 2011 Time: 10:30 a.m. Location: Courtroom 13 19 20 21 22 23 24 25 26 27 28 In re Ferrero Litigation, No. 11 CV 00205 H (CABx) (S.D. Cal.) PLAINTIFFS’ OPPOSITION TO DEFENDANTS’S MOTION TO DISMISS 1 TABLE OF CONTENTS 2 3 4 TABLE OF AUTHORITIES .................................................................................................................. ii INTRODUCTION ...................................................................................................................................1 5 6 ARGUMENT ...........................................................................................................................................1 7 I. LEGAL STANDARD ..................................................................................................................1 8 II. PLAINTIFFS MAY CHALLENGE FERRERO’S WEBSITE ...................................................2 9 A. Plaintiffs Allege Facts Sufficient Under Rule 9(b) to Demonstrate Ferrero’s Advertising Campaign was Long-term and Extensive..................................................... 2 B. Plaintiffs’ Standing is not Defeated by Allegations in a Prior Complaint ....................... 6 10 11 12 CONCLUSION ........................................................................................................................................8 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 i In re Ferrero Litigation, No. 11 CV 00205 H (CABx) (S.D. Cal.) PLAINTIFFS’ OPPOSITION TO DEFENDANTS’S MOTION TO DISMISS 1 TABLE OF AUTHORITIES 2 Cases 3 Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009) .........................................................................................................................2 4 5 Baas v. Dollar Tree Stores, Inc., 2007 U.S. Dist. LEXIS 65979 (N.D. Cal. Aug. 29, 2007) ..............................................................4, 5 6 7 8 9 10 11 12 13 14 15 16 17 Bly-Magee v. California, 236 F.3d 1014 (9th Cir. 2001) .............................................................................................................6 Boeken v. Philip Morris, Inc., 127 Cal. App. 4th 1640 (2005) ............................................................................................................3 Doyle v. Ill. Cent. R.R. Co., 2009 U.S. Dist. LEXIS 8852 (E.D. Cal. Jan. 29, 2009) ......................................................................2 Gilligan v. Jamco Dev. Corp., 108 F.3d 246 (9th Cir. 1997) ...............................................................................................................2 Henderson v. Gruma Corp., 2011 U.S. Dist. LEXIS 41077 (C.D. Cal. Apr. 11, 2011) ...................................................................6 In re Ferrero Litig., 2011 U.S. Dist. LEXIS 70629 (S.D. Cal. June 30, 2011)................................................................1, 7 In re Tobacco II Cases, 46 Cal. 4th 298 (2009) .................................................................................................................2, 3, 6 18 19 20 21 22 23 24 Kearns v. Ford Motor Co., 567 F.3d 1120 (9th Cir. 2009) .............................................................................................................5 Loux v. Rhay, 375 F.2d 55 (9th Cir. 1967) .................................................................................................................6 Mohamed v. Jeppesen Dataplan, Inc., 579 F.3d 943 (9th Cir. 2009) ...............................................................................................................2 Moore v. Kayport Package Express, Inc., 885 F.2d 531 (9th Cir. 1989) ...............................................................................................................4 25 26 27 28 Morgan v. AT&T Wireless Services, Inc., 177 Cal. App. 4th 1235 (Cal. App. 2d Dist. 2009) ..............................................................................4 Neubronner v. Milken, 6 F.3d 666 (9th Cir. 1993) ...................................................................................................................5 ii In re Ferrero Litigation, No. 11 CV 00205 H (CABx) (S.D. Cal.) PLAINTIFFS’ OPPOSITION TO DEFENDANTS’S MOTION TO DISMISS 1 2 3 4 5 6 7 8 Reddy v. Litton Indus., Inc., 912 F.2d 291 (9th Cir. 1990) ...............................................................................................................6 Rhodes v. Robinson, 621 F.3d 1002 (9th Cir. 2010) .............................................................................................................6 Semegen v. Weidner, 780 F.2d 727 (9th Cir. 1985) ...............................................................................................................4 Siracusano v. Matrixx Initiatives, Inc., 585 F.3d 1167 (9th Cir. 2009) ............................................................................................................2 United States ex rel. Lee v. Corinthian Colleges, 2011 U.S. App. LEXIS 16618 (9th Cir. Aug. 12, 2011) .....................................................................6 9 10 11 12 Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097 (9th Cir. 2003) .............................................................................................................4 Walter v. Hughes Communs., Inc., 682 F. Supp. 2d 1031 (N.D. Cal. 2010) ...........................................................................................5, 6 13 14 15 Rules Fed. R. Civ. P. 9(b) ..................................................................................................................................4 16 17 18 19 20 21 22 23 24 25 26 27 28 iii In re Ferrero Litigation, No. 11 CV 00205 H (CABx) (S.D. Cal.) PLAINTIFFS’ OPPOSITION TO DEFENDANTS’S MOTION TO DISMISS 1 INTRODUCTION 2 This action challenges the consistent deceptive messaging Ferrero has conveyed to the public 3 in multiple forms and media over the past decade: that Nutella is a healthy “hazelnut spread,” like 4 peanut butter, and a good breakfast food, especially for children. 5 In its June 30, 2011 Order on Ferrero’s Motion to Dismiss the prior Master Consolidated 6 Complaint (“MCC”), the Court held Plaintiffs lacked standing to challenge statements made on the 7 Nutella website “because although Plaintiffs argue that they were exposed to a long-term advertising 8 campaign in their opposition, Plaintiffs never allege this in their consolidated complaint.” In re 9 Ferrero Litig., 2011 U.S. Dist. LEXIS 70629, at *6 (S.D. Cal. June 30, 2011). The Court, however, 10 granted Plaintiffs leave “to amend or cure any deficiencies—if they can—in an amended consolidated 11 complaint.” Id. at *25. That is just what Plaintiffs did. In their First Amended Consolidated Complaint 12 (“FACC”), filed July 3, 2011 (Dkt. No. 45), Plaintiffs allege that: 13 Throughout the Class Period, Ferrero engaged in, and Plaintiffs and members of the class were exposed to, a long-term advertising campaign in which Ferrero utilized various forms of media, including, but not limited to, print advertising on the Nutella label and elsewhere, websites, television commercials, physicians, and unpaid press coverage, to consistently convey the deceptive and misleading message that Nutella is healthy, nutritious, part of a healthy meal, part of a balanced meal, and/or beneficial for developing and growing children. 14 15 16 17 18 FACC at ¶ 76. See also id. at ¶¶ 9, 99, 104-106. 19 Ferrero nevertheless filed a five-page Motion limited to the sole question of whether Plaintiffs 20 have standing to challenge directly the Defendant’s web advertisements for Nutella. Ferrero asserts 21 that these amendments do not give Plaintiffs standing to challenge the website statements “because (1) 22 plaintiffs have not alleged any facts demonstrating Ferrero’s advertising campaign was ‘long-term and 23 extensive,’ and (2) unlike plaintiffs in Tobacco II, these plaintiffs can (and did) identify the specific 24 statements that they allegedly relied on in making their purchasing decision.” Mot. at 2. Ferrero is 25 wrong on both counts. 26 27 28 ARGUMENT I. LEGAL STANDARD Federal pleading requirements are “extremely liberal,” and require only “a short and plain 1 In re Ferrero Litigation, No. 11 CV 00205 H (CABx) (S.D. Cal.) PLAINTIFFS’ OPPOSITION TO DEFENDANTS’S MOTION TO DISMISS 1 statement of the claim,” so as to “minimize disputes over pleading technicalities.” Doyle v. Ill. Cent. 2 R.R. Co., 2009 U.S. Dist. LEXIS 8852, at *9-10 (E.D. Cal. Jan. 29, 2009). Courts evaluate motions to 3 dismiss with “a powerful presumption against rejecting pleadings for failure to state a claim,” Gilligan 4 v. Jamco Dev. Corp., 108 F.3d 246, 248-49 (9th Cir. 1997) (internal quotation omitted). “When there 5 are well-pleaded allegations, a court should assume their veracity and then determine whether they 6 plausibly give rise to an entitlement for relief.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1950 (2009). In 7 deciding a motion to dismiss, courts should draw “all reasonable inferences from the complaint in 8 [Plaintiff’s] favor,” Mohamed v. Jeppesen Dataplan, Inc., 579 F.3d 943, 949 (9th Cir. 2009), and 9 “accept the plaintiffs’ allegations as true and construe them in the light most favorable to the 10 plaintiffs.” Siracusano v. Matrixx Initiatives, Inc., 585 F.3d 1167, 1177 (9th Cir. 2009). 11 II. 12 PLAINTIFFS MAY CHALLENGE FERRERO’S WEBSITE A. 13 Plaintiffs Allege Facts Sufficient Under Rule 9(b) to Demonstrate Ferrero’s Advertising Campaign was Long-term and Extensive 14 Contrary to Defendant’s assertion that Plaintiffs’ allegations “contain no details about the 15 alleged ‘long-term advertising campaign,’” Mot. at 3, Plaintiffs’ FACC, under the heading 16 “FERRERO’S LONG-TERM, MULTI-MEDIA, DECEPTIVE ADVERTISING CAMPAIGN,” 17 contains no less than 23 paragraphs dedicated to detailing it. FACC at ¶¶ 76-98. The FACC discusses 18 in detail how Ferrero used the label of Nutella, id. at ¶¶ 77-78, its website, id. at ¶¶ 78-89, television 19 commercials, id. at ¶¶ 90-96, word-of-mouth, id. at ¶¶ 82-88, and product categorization, id. at ¶¶ 98, 20 to convey the deceptive and misleading message that Nutella is healthy and nutritious, including 21 touting Nutella as part of a balanced meal and beneficial for developing and growing children. 1 22 It is axiomatic that, “where, as here, a plaintiff alleges exposure to a long-term advertising 23 campaign, the plaintiff is not required to plead with an unrealistic degree of specificity that the 24 plaintiff relied on particular advertisements or statements.” In re Tobacco II Cases, 46 Cal. 4th 298, 25 328 (2009). Here, Plaintiffs allege that “throughout the [more than ten-year] Class Period, Ferrero 26 engaged in, and Plaintiffs and members of the class were exposed to, a long-term advertising 27 1 28 Incidentally, as detailed in Plaintiffs’ Motion for Class Certification (Dkt. No. 51 & 56 (Corrected Brief)), the extensive nature of this campaign has been borne out in discovery and actually shown to be even more extensive than pled. 2 In re Ferrero Litigation, No. 11 CV 00205 H (CABx) (S.D. Cal.) PLAINTIFFS’ OPPOSITION TO DEFENDANTS’S MOTION TO DISMISS 1 campaign in which Ferrero utilized various forms of media . . . to consistently convey the deceptive 2 and misleading message that Nutella is healthy, nutritious, part of a healthy meal, part of a balanced 3 meal, and/or beneficial for developing and growing children.” FACC at ¶ 76. Accordingly, the Court 4 should likewise hold that Plaintiffs do not have to plead specific reliance on statements from the 5 Nutella website in order to have standing to challenge them. That conclusion would not only be in 6 accord with the language of Tobacco II, but also its putative purpose. 7 In arriving at that conclusion, the California Supreme Court relied on earlier tobacco decisions 8 that were allowed to proceed with a Plaintiff challenging a manufacturer’s entire advertising campaign 9 despite not pleading reliance on specific statements. In Boeken v. Philip Morris, Inc., 127 Cal. App. 10 4th 1640 (2005), for example, the Court explained, “there was substantial evidence that Boeken began 11 to smoke ‘for reasons that track Philip Morris’s advertising at the time’,” Tobacco II, 46 Cal. 4th at 12 327 (quoting Boeken, 127 Cal. App. 4th at 1663). 13 The same is true here. For over a decade, Ferrero has been trying to convince American 14 consumers—like European consumers before them—that Nutella is a “hazelnut spread,” like peanut 15 butter, despite that it is mostly sugar and oil, and that Nutella is healthy, and an appropriate breakfast 16 food. As detailed in the FACC, this included conveying messages through a variety of media, with the 17 hope and purpose of “spreading the word” about Nutella’s purported healthful qualities. And as 18 argued in their Opposition and now pled, Plaintiffs were exposed to the representations that appeared 19 on the Nutella website by virtue of their incorporation into Ferrero’s overall deceptive advertising 20 campaign. See Opp. at 19 (Dkt. No. 39). Construing the allegations in the best light to Plaintiffs, they 21 have sufficiently alleged a Tobacco II-like campaign at this stage to have standing to challenge 22 Ferrero’s full campaign without pleading reliance to an unrealistic degree. 23 Ignoring its deceptive advertising and unlawful conduct before 2008, Ferrero nevertheless 24 asserts that because the majority of the challenged advertising took place beginning in 2008 as part of 25 a “ramped-up” campaign to better spread the same healthful messaging, Plaintiffs have not shown a 26 “long-term” campaign. But even if the Court limited its analysis to the period starting in 2008, 27 Plaintiffs have still shown a multi-faceted campaign that is more than three years long, and 28 continuing. Given the putative purposes of the rule, other California courts have found long-term 3 In re Ferrero Litigation, No. 11 CV 00205 H (CABx) (S.D. Cal.) PLAINTIFFS’ OPPOSITION TO DEFENDANTS’S MOTION TO DISMISS 1 campaigns entitling a plaintiff to challenge a defendant’s full advertising campaign, even when the 2 time period was shorter. In Morgan v. AT&T Wireless Services, Inc., 177 Cal. App. 4th 1235 (Cal. 3 App. 2d Dist. 2009), for example, the court held that “[a]lthough the advertising campaign alleged in 4 this case was not as long-term a campaign as the tobacco companies’ campaign discussed in Tobacco 5 II, it is alleged to have taken place over many months, in several different media, in which [Defendant] 6 consistently promoted its GSM/GPRS network as reliable, improving, and expanding.” Id. at 1258 7 (emphasis added). Thus, each individual statement need not have been present throughout the entire 8 advertising campaign, as long as Defendant “consistently promoted” the same deceptive and 9 misleading message throughout. See id. 10 Despite the great detail in the FACC, Ferrero nevertheless argues that Plaintiffs have not met 11 the pleading requirements of Federal Rule of Civil Procedure 9(b), despite that it did not raise Rule 12 9(b) in its motion to dismiss the original complaint. Rule 9(b) requires that “[i]n alleging fraud or 13 mistake, a party must state with particularity the circumstances constituting fraud or mistake.” Fed. R. 14 Civ. P. 9(b). The heightened pleading standard set by Rule 9(b) applies to claims for violation of the 15 UCL, FAL, or CLRA that are “grounded in fraud.” See Vess v. Ciba-Geigy Corp. USA, 317 F.3d 16 1097, 1103-06 (9th Cir. 2003). The purpose of Rule 9(b) is to ensure the allegations are “specific 17 enough to give defendants notice of the particular misconduct which is alleged to constitute the fraud 18 charged so that they can defend against the charge and not just deny that they have done anything 19 wrong.” Semegen v. Weidner, 780 F.2d 727, 731 (9th Cir. 1985). And while averments of fraud must 20 be particularized, the “Rule 9(b) particularity requirements must be read in harmony with Fedral Rule 21 of Civil Procedure 8’s requirement of a ‘short and plain’ statement of the claim.” Baas v. Dollar Tree 22 Stores, Inc., 2007 U.S. Dist. LEXIS 65979, at *5 (N.D. Cal. Aug. 29, 2007). The particularity 23 requirement is satisfied “if the complaint ‘identifies the circumstances constituting fraud so that a 24 defendant can prepare an adequate answer from the allegations.’” Id. (quoting Moore v. Kayport 25 Package Express, Inc., 885 F.2d 531, 540 (9th Cir. 1989)). Simply put, “[a]verments of fraud must be 26 accompanied by ‘the who, what, when, where, and how’ of the misconduct charged.” Vess, 317 F.3d 27 at 1106. However, the requirements of Rule 9(b) “may be relaxed with respect to matters within the 28 4 In re Ferrero Litigation, No. 11 CV 00205 H (CABx) (S.D. Cal.) PLAINTIFFS’ OPPOSITION TO DEFENDANTS’S MOTION TO DISMISS 1 opposing party’s knowledge. In such situations, plaintiffs cannot be expected to have personal 2 knowledge of the relevant facts.” Neubronner v. Milken, 6 F.3d 666, 672 (9th Cir. 1993). 3 Plaintiffs’ FACC satisfies the pleading requirements of Rule 9(b). Unlike the complaint 4 dismissed in Kearns v. Ford Motor Co., 567 F.3d 1120 (9th Cir. 2009), which failed to even state the 5 wording of the allegedly deceptive statements, id. at 1126, Plaintiffs’ FACC specifies the exact 6 wording of each deceptive and misleading statement and even includes images of each of the claims 7 on the product label and website, and transcripts of the television commercials. FAC at ¶¶ 76-98. The 8 FACC also explains in detail how each statement or image is deceptive and misleading. Id. Thus, 9 Plaintiffs have clearly identified the “what,” “where,” and “how” of their allegations. Nor can 10 Defendant challenge Plaintiffs identification of the “who,” since the FACC clearly identifies all 11 parties involved in this case. FACC at ¶¶ 10-20. 12 The only Rule 9(b) requirement Ferrero really challenges is the “when” of Plaintiffs’ 13 allegations. Mot. at 3-4. As discussed above, Plaintiffs have alleged that Defendant’s extensive and 14 long-term advertising campaign took place throughout the entire class period (as defined in the 15 FACC), during which Ferrero utilized the forms of media discussed above to consistently convey the 16 deceptive and misleading message that Nutella is healthy and nutritious. FACC at ¶¶ 76-98. While 17 Plaintiffs have not identified the exact date that each individual statement was in effect, Ferrero is in 18 the best position to know this information and the requirements of 9(b) “may be relaxed with respect 19 to matters within the opposing party’s knowledge.” Neubronner, 6 F.3d at 672. But Plaintiffs have 20 certainly identified the challenged statements with enough specificity to allow Defendants to “prepare 21 an adequate answer from the allegations.” Baas, 2007 U.S. Dist. LEXIS 65979, at *5. 22 That the Court should permit the FACC to proceed under the Rule 9(b) standard is 23 dramatically illustrated in the case of Walter v. Hughes Communs., Inc., 682 F. Supp. 2d 1031 (N.D. 24 Cal. 2010), which involved similar circumstances to those here. There, the Court held a much less 25 detailed complaint met Rule 9(b)’s pleading requirement under the “long-term advertising” rule: 26 27 28 The Court is satisfied that the pleadings in the Amended Complaint are sufficiently particular to plead reliance. Although Plaintiffs have not cited specific advertisements that predate their use of Hughes’ services, each Plaintiff alleges that they subscribed to Hughes’ services based on Hughes’ representations, which (although roughly described) are comparable to the more recent representations, which are alleged with greater 5 In re Ferrero Litigation, No. 11 CV 00205 H (CABx) (S.D. Cal.) PLAINTIFFS’ OPPOSITION TO DEFENDANTS’S MOTION TO DISMISS 1 particularity. Plaintiffs are, in essence, asking this Court to make an inference that Hughes’ representations have been consistent over time in certain material respects, dating back for the last several years. The Court finds this to be a reasonable inference. Because Plaintiffs have identified recent, particular representations from Hughes’ marketing campaign, and alleged that they relied on similar or identical representations made at earlier times, Plaintiffs have adequately notified Hughes of the claims against it. 2 3 4 5 Id. at 1045 (citations to record omitted) (citing Bly-Magee v. California, 236 F.3d 1014, 1019 (9th Cir. 6 2001); Tobacco II, 46 Cal. 4th at 328). 7 B. Plaintiffs’ Standing is not Defeated by Allegations in a Prior Complaint 8 Ferrero alternatively argues that Plaintiffs insufficiently allege a long-term campaign because 9 Plaintiffs specified some advertisements on which they relied in a prior complaint. But “when a 10 plaintiff files an amended complaint, ‘[t]he amended complaint supercedes the original, the latter 11 being treated thereafter as non-existent.’” Rhodes v. Robinson, 621 F.3d 1002, 1005 (9th Cir. 2010) 12 (quoting Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967)); accord Henderson v. Gruma Corp., 2011 13 U.S. Dist. LEXIS 41077, at *15-16 (C.D. Cal. Apr. 11, 2011) (“Defendant’s argument that Plaintiffs 14 lack standing relies entirely on a contrast between Plaintiffs’ original complaint . . . and the First 15 Amended Complaint. . . . Defendant is incorrect. . . . While prior pleadings may be admissible in 16 evidence against the pleader, the Court is bound to accept as true allegations in the Plaintiffs’ pending 17 pleadings . . . .” (citations omitted)). Accordingly, the determination of whether Plaintiffs have 18 standing to assert their claims against Ferrero’s entire Nutella advertising campaign, including its 19 website advertising, must be determined on the basis of the allegations in the currently-operative 20 Complaint alone. 2 21 Plaintiffs’ allege they “were exposed [to] Ferrero’s long-term advertising campaign concerning 22 the purported healthfulness of Nutella . . . [and] understood and relied upon Ferrero’s 23 misrepresentations for each purchase of Nutella® made during the Class Period, including, for 24 2 25 26 27 28 While not directly on point, “[l]eave to amend is warranted if the deficiencies can be cured with additional allegations that are ‘consistent with the challenged pleading’ and do not contradict the allegations in the original complaint. United States ex rel. Lee v. Corinthian Colleges, 2011 U.S. App. LEXIS 16618, at *22 (9th Cir. Aug. 12, 2011) (citing Reddy v. Litton Indus., Inc., 912 F.2d 291, 29697 (9th Cir. 1990)). Here, as in United States ex rel. Lee v. Corinthian Colleges, Plaintiffs’ allegations of exposure to a long-term advertising campaign are entirely consistent with their identifying in the original complaint some specific advertisements to which they were exposed. Compare MCC ¶¶ 104106 with FACC ¶¶ 104-106. 6 In re Ferrero Litigation, No. 11 CV 00205 H (CABx) (S.D. Cal.) PLAINTIFFS’ OPPOSITION TO DEFENDANTS’S MOTION TO DISMISS 1 example, “moms are helping nourish their children with whole grains,” “A balanced breakfast is key 2 to a great start each morning for the entire family, especially for children,” “An example of a tasty yet 3 balanced breakfast,” and “Nutella® can form a part of a balanced meal.” FACC ¶ 104. Plaintiffs 4 further allege they were “exposed to, saw, read, understood, and relied upon Nutella’s® label . . . [and 5 were] further exposed to, saw, heard, understood, and relied upon various statements made about 6 Nutella’s® purported healthful qualities as part of Ferrero’s long-term advertising campaign.” Id. ¶¶ 7 105-106. These allegations, when construed in the light most favorable to Plaintiffs, are sufficient to 8 allege exposure to a long-term advertising campaign at this juncture. 9 Notably, in amending their Complaint to adequately allege exposure to a long-term campaign, 10 Plaintiffs did not dramatically alter the pleading, but merely “shored it up,” just as the Court invited. 11 See In re Ferrero Litig., 2011 U.S. Dist. LEXIS 70629, at *6 (Noting that “Plaintiffs argue that they 12 did not have to rely on the individual misrepresentations on the website because they were part of a 13 long-term, multifaceted advertising campaign,” and distinguishing this case “because although 14 Plaintiffs argue that they were exposed to a long-term advertising campaign in their opposition, 15 Plaintiffs never allege this in their consolidated complaint.” (emphasis added)). That is because the 16 seeds of sufficient allegations were already in the Complaint—details about the many ways and means 17 Ferrero has deceptively promoted Nutella as healthy throughout the years. 18 In sum, the Court effectively invited Plaintiffs to amend their Complaint to incorporate the 19 argument from their opposition into their allegations. That is just what Plaintiffs did. In their 20 Opposition, Plaintiffs argued they “allege dozens of statements, including several on Nutella’s label, 21 which, as part of Nutella’s long-term, multi-media advertising campaign, contributed to the deceptive 22 context of Nutella’s packaging as a whole.” Opp. at 17. That statement referenced the many 23 statements about Nutella and forms of media discussed in the original complaint, and argued that 24 Plaintiffs were indirectly exposed to elements of the campaign, like the advice of Ferrero’s child 25 nutrition expert, Connie Evers. Id. at 19. The FACC now properly alleges that the many statements 26 Plaintiffs were exposed to were elements of a long-term campaign, such that Plaintiffs may challenge 27 the entirety of the campaign. 28 7 In re Ferrero Litigation, No. 11 CV 00205 H (CABx) (S.D. Cal.) PLAINTIFFS’ OPPOSITION TO DEFENDANTS’S MOTION TO DISMISS 1 2 3 CONCLUSION Plaintiffs respectfully request the Court deny Ferrero’s Motion to Dismiss. Should the Court grant any portion of Ferrero’s Motion, Plaintiffs respectfully request it be without prejudice. 4 5 6 7 8 9 10 11 12 13 Dated: August 15, 2011 By: /s/ Jack Fitzgerald Jack Fitzgerald 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 16 LAW OFFICES OF RONALD A. MARRON, APLC RONALD A. MARRON 3636 4th Avenue, Suite 202 San Diego, CA 92103 Telephone: (619) 696-9006 Facsimile: (619) 564-6665 17 INTERIM CLASS COUNSEL 14 15 18 19 20 21 22 23 24 25 26 27 28 8 In re Ferrero Litigation, No. 11 CV 00205 H (CABx) (S.D. Cal.) PLAINTIFFS’ OPPOSITION TO DEFENDANTS’S MOTION TO DISMISS