Hohenberg v. Ferrero USA, Inc

Filing 10

REPLY to Response to Motion re 8 MOTION to Consolidate Cases MOTION to Appoint Counsel filed by Athena Hohenberg. (Attachments: # 1 Exhibit A, # 2 Proof of Service )(Marron, Ronald) (ag).

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LAW OFFICES OF RONALD A. MARRON, APLC Ronald A. Marron, Esq., State Bar No. 175650 3636 4th Avenue, Suite 202 San Diego, California 92103 Telephone: [phone] Facsimile: [phone] [e-mail] THE WESTON FIRM Gregory S. Weston, Esq., State Bar No. 239944 Jack Fitzgerald, Esq., State Bar No. 257370 888 Turquoise Street San Diego, California 92109 Telephone: [phone] Facsimile: [phone] [e-mail] [e-mail] Counsel for Plaintiff, Athena Hohenberg and the Proposed Class; Counsel for Related-Case Plaintiff, Laura Rude-Barbado; and the Proposed Class UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

ATHENA HOHENBERG, individually and on behalf of all others similarly situated, Plaintiffs, v. FERRERO U.S.A, INC., a foreign corporation, Defendant.

CASE NO. 11-cv-00205 H CAB CLASS ACTION REPLY BRIEF IN FURTHER SUPPORT OF MOTION BY PLAINTIFF ATHENA HOHENBERG AND RELATED CASE PLAINTIFF LAURA RUDE-BARBATO TO: (1) CONSOLIDATE CASES, AND (2) APPOINT INTERIM LEAD COCLASS COUNSEL Date: Time: Location: Judge: March 28, 2011 10:30 a.m. Courtroom 13 Hon. Marilyn L. Huff

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REPLY ISO MOTION BY PLAINTIFFS TO: (1) CONSOLIDATE CASES, AND (2) APPOINT INTERIM CO-CLASS COUNSEL
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LAURA RUDE-BARBATO, on behalf of herself and all others similarly situated, Plaintiff, v. FERRERO U.S.A, INC., Defendant.

Case No. 11-cv-00249-DMS-BLM Class Action Hon. Dana M. Sabraw

I.

REPLY BRIEF IN FURTHER SUPPORT OF MOTION BY PLAINTIFF ATHENA HOHENBERG AND RELATED CASE PLAINTIFF LAURA RUDE-BARBATO TO: CONSOLIDATE CASES, AND (2) APPOINT INTERIM LEAD CO-CLASS COUNSEL This case and the related action, Rude-Barbato v. Ferrero U.S.A., Case No. 11-cv-00249 H

CAB, are ripe for consolidation. As Ferrero's non-opposition to plaintiffs' motion to consolidate attests, consolidation is both proper and warranted. That Ferrero has been sued in other venues and apparently intends to take action in response to those claims is not relevant to the issues presently before this Court weighing on the question of whether to consolidate the two related cases pending in this District. Moreover, Ferrero has not filed any motion with respect to those actions, and it is uncertain whether Ferrero would be successful in its efforts to transfer all of the actions pending against it to any particular jurisdiction. Accordingly, Plaintiffs respectfully request that in ruling on Plaintiffs' motion to consolidate and appoint interim lead co-class counsel, this Court decline to take into consideration the two additional class action complaints filed against Defendant.1 Even if the Court considered the copycat New Jersey actions, they would only reinforce the need for appointment of interim counsel, since appointment of interim class counsel is especially appropriate where "there are a number of overlapping, duplicative, or competing suits pending in other courts, and some or all of those suits may be consolidated, [and] a number of lawyers may

Moreover, we note the New Jersey state action appears to be brought by an attorney on behalf of a named plaintiff who appears to be a direct family member (the plaintiff's last name is the same as her attorney, and she alleges she purchased Nucoa in the same town of her attorney).Thus it is questionable whether that action will survive long. Also, the second copycat action, though filed in New Jersey, was brought by attorneys located in San Diego. 2
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compete for class counsel appointment. In such cases, designation of interim counsel clarifies responsibility for protecting the interests of the class during precertification activities . . . ." Manual of Complex Litigation 4th § 21.11 (2004). Here, Plaintiffs' counsel, The Law Offices of Ronald A. Marron and the Weston Firm, dedicated substantial time and resources investigating Plaintiffs' claims and drafting their class action complaints. In addition, the parties in the Hohenberg action have already held their Rule 26(f) conference and are finalizing their joint statement to be submitted to this court. Furthermore, as of the date of this Motion, discovery has been initiated, with a focus on issues pertaining to venue and choice of law. Moreover, due to counsels' efforts, Plaintiffs are prepared to file an Amended Consolidated Complaint that substantially expands their claims against Ferrero, and which includes allegations well beyond those raised in the late-filed copycat actions. Attached hereto as Exhibit A is a true and correct copy of Plaintiff's [Proposed] First Amended Consolidated Complaint Against Defendant Ferrero U.S.A., Inc., For: Unfair Competition; False Advertising; Violations of Consumer Legal Remedies Act; Violations of the New Jersey Consumer Fraud Act; Breach of Express Warranty; and Breach of Implied Warranty of Merchantability. Plaintiffs also made a strong showing of the experience and qualifications of their counsel in successfully managing and overseeing class actions similar to the instant cases,2 justifying their selection as Interim Lead Co-Class Counsel in the consolidated action. Counsels' commitment to the interests of plaintiffs and the putative classes and their ability to manage, oversee and take the lead with respect to Plaintiffs' claims, is also undeniable. Accordingly, Plaintiffs' counsel, The Law Offices of Ronald A. Marron and the Weston Firm, should be appointed Interim Lead Co-Class Counsel in the consolidated action. /// /// Indeed, on February 24, this Court denied in full a motion to dismiss made by a defendant in a similar false advertising action brought by a plaintiff represented by proposed interim counsel the Weston Firm. See Peviani v. Natural Balance, Inc., No. 10-CV-2451 H (BGS), 2011 U.S. Dist. LEXIS 18110 (S.D. Cal. Feb. 24, 2011) (Huff, J.). 3
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II.

CONCLUSION Because the instant actions share common issues of law and fact because Ferrero does not

oppose consolidation, Plaintiffs respectfully request that the Hohenberg and Rude-Barbato actions be consolidated. Plaintiffs further request that The Law Offices of Ronald A. Marron and the Weston Firm, be appointed Interim Lead Co-Class Counsel in the consolidated action. DATED: March 21, 2011 Respectfully submitted by, /s/ Ronald A. Marron Ronald A. Marron LAW OFFICES OF RONALD A. MARRON, APLC 3636 4th Avenue, Suite 202 San Diego, CA 92103 Telephone: [phone] Facsimile: [phone] Attorneys for Plaintiff Athena Hohenberg; and the Proposed Class

/s/Gregory S. Weston Gregory S. Weston THE WESTON FIRM GREGORY S. WESTON JACK FITZGERALD 888 Turquoise Street San Diego, CA 92109 Telephone: [phone] Facsimile: 480 247 4553 Counsel for Plaintiff Laura Rude-Barbato and the Proposed Class

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REPLY ISO MOTION BY PLAINTIFFS TO: (1) CONSOLIDATE CASES, AND (2) APPOINT INTERIM CO-CLASS COUNSEL