Hohenberg v. Ferrero USA, Inc

Filing 92

SUPPLEMENTAL BRIEFING by Plaintiffs Athena Hohenberg, Laura Rude-Barbato re 51 MOTION for Class Certification Pursuant to Order at Hearing. (Attachments: # 1 Proof of Service)(Fitzgerald, John) (ag).

1 2 3 4 5 LAW OFFICES OF RONALD A. MARRON, APLC RONALD A. MARRON (175650) ron.marron@gmail.com 3636 4th Avenue, Suite 202 San Diego, California 92103 Telephone: (619) 696-9006 Facsimile: (619) 564-6665 6 7 8 9 THE WESTON FIRM GREGORY S. WESTON (239944) greg@westonfirm.com JACK FITZGERALD (257370) jack@westonfirm.com MELANIE PERSINGER (275423) mel@westonfirm.com COURTLAND CREEKMORE (182018) courtland@westonfirm.com 1405 Morena Blvd., Suite 201 San Diego, CA 92110 Telephone: (619) 798-2006 Facsimile: (480) 247-4553 Interim Class Counsel 10 11 UNITED STATES DISTRICT COURT 12 SOUTHERN DISTRICT OF CALIFORNIA 13 14 15 16 17 IN RE FERRERO LITIGATION Case No. 3:11-cv-00205-H-CAB Pleading Type: Class Action Action Filed: February 01, 2011 SUPPLEMENTAL STATEMENT OF AUTHORITY IN SUPPORT OF CLASS CERTIFICATION (PURSUANT TO ORDER AT HEARING) 18 19 20 Judge: Hon. Marilyn L. Huff Date: November 7, 2011 Time: 10:30 a.m. Location: Courtroom 13 21 22 23 24 25 26 27 28 PLAINTIFFS’ REPLY IN SUPPORT OF MOTION FOR CLASS CERTIFICATION 1 Wal-Mart has not turned class certification into a “mini-trial,” and expert evidence is not necessary to 2 show the predominance of common questions in this routine consumer fraud case under California’s UCL, 3 FAL and CLRA. In Ellis v. Costco Wholesale Corp., the Ninth Circuit cautioned: “Costco seems to equate a 4 ‘rigorous analysis’ with an in-depth examination of the underlying merits . . . . This is incorrect. The district 5 court is required to examine the merits . . . only inasmuch as it must determine whether common questions 6 exist; not to determine whether class members could actually prevail on the merits of their claims. To hold 7 otherwise would turn class certification into a mini-trial. 2011 U.S. App. LEXIS 19060, at *29 n.8 (9th Cir. 8 Sept. 16, 2011) (internal citations omitted). Here, “[u]nlike in Wal-Mart, where the injury suffered, 9 discrimination, happened at the hands of different supervisors in different regions without the link of a 10 common practice or policy, any injury suffered by a class member in this case stems from . . . a common 11 advertising campaign that had little to no variation.” Johnson v. Gen. Mills, Inc., 2011 U.S. Dist. LEXIS 12 103357, at *6 (C.D. Cal. Sept. 15, 2011) (denying motion for decertification in light of Wal-Mart 13 and Stearns). Accord Youngblood v. Family Dollar Stores, Inc., 2011 U.S. Dist. LEXIS 115389, at *13-14 14 (S.D.N.Y. Oct. 4, 2011) (“Unlike the claims in Wal-Mart, Plaintiffs’ [state law] claims do not require an 15 examination of the subjective intent behind millions of individual employment decisions; rather, the crux of 16 this case is whether the company-wide policies . . . violated Plaintiffs’ statutory rights.” (quotations and 17 citation omitted)); Jermyn v. Best Buy Stores, L.P., 2011 U.S. Dist. LEXIS 104449, at *16 (S.D.N.Y. Sept. 15, 18 2011) (an allegation that defendant had a uniform policy “is precisely what is missing in [Wal-Mart]”); Public 19 Employees Ret. Sys. of Miss. v. Merrill Lynch & Co, Inc., 2011 U.S. Dist. LEXIS 93222, at *26 (S.D.N.Y. 20 Aug. 22, 2011) (“Wal-Mart has no effect on the commonality determination in this case. The common 21 questions presented by this case—essentially, whether the Offering Documents were false or misleading in 22 one or more respects—are clearly susceptible to common answers.”); Smith v. Ceva Logistics U.S., Inc., 2011 23 U.S. Dist. LEXIS 111941, at *6-7 n.1 (C.D. Cal. Sept. 28, 2011) (“Ellis is inapposite because it raises 24 commonality issues not present in this case.”). See also Mathias v. Smoking Everywhere, Inc., 2011 U.S. Dist. 25 LEXIS 121687, at *4-6 (E.D. Cal. Oc.t 20, 2011) (finding commonality and typicality met based on evidence 26 of the content of Defendant’s website, which was alleged to contain misleading statements); Galvan v. KDI 27 Distribution, Inc., 2011 U.S. Dist. LEXIS 127602, at *7-8, 17-18 (C.D. Cal. Oct. 25, 2011). These cases 28 represent just a small sample of the many post-Wal-Mart decisions similarly distinguishing the decision. 1 In re Ferrero Litigation, No. 11-205 (S.D. Cal.) PLAINTIFFS’ REPLY IN SUPPORT OF MOTION FOR CLASS CERTIFICATION 1 2 DATED: November 7, 2011 Respectfully Submitted, 3 /s/ Jack Fitzgerald Jack Fitzgerald 4 5 6 7 8 9 10 11 12 13 14 THE WESTON FIRM JACK FITZGERALD GREGORY S. WESTON MELANIE PERSINGER COURTLAND CREEKMORE 1405 Morena Blvd., Suite 201 San Diego, CA 92110 Telephone: (619) 798-2006 Facsimile: (480) 247-4553 LAW OFFICES OF RONALD A. MARRON, APLC RONALD A. MARRON 3636 4th Street, Suite 202 San Diego, CA 92103 Telephone: (619) 696-9066 Facsimile: (619) 564-6665 Interim Class Counsel 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 In re Ferrero Litigation, No. 11-205 (S.D. Cal.) PLAINTIFFS’ REPLY IN SUPPORT OF MOTION FOR CLASS CERTIFICATION