Hohenberg v. Ferrero USA, Inc
Filing
114
MOTION for Settlement Motion for Final Approval of Class Action Settlement, MOTION for Attorney Fees Motion for Attorneys' Fees, Costs, and Incentive Awards by Athena Hohenberg, Laura Rude-Barbato. (Attachments: # 1 Memo of Points and Authorities in Support of Motion for Final Settlement Approval (Redacted Version), # 2 Memo of Points and Authorities in Support of Motion for Approval of Attorneys' Fees, Costs, and Incentive Awards (Redacted Version), # 3 Declaration of Ronald A. Marron, # 4 Declaration of Jack Fitzgerald, # 5 Declaration of Athena Hohenberg, # 6 Declaration of Laura Rude-Barbato, # 7 Affidavit of Charlene Young)(Fitzgerald, John) (ag).
1 LAW OFFICES OF RONALD A.
MARRON, APLC
2 RONALD A. MARRON (175650)
3 ron@consumersadvocates.com
MAGGIE REALIN (263639)
4 maggie@consumersadvocates.com
SKYE RESENDES (278511)
5 skye@consumersadvocates.com
3636 4th Avenue, Suite 202
6 San Diego, California 92103
(619) 696-9006
7 Telephone:
Facsimile:
(619) 564-6665
8
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
9 Class Counsel
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UNITED STATES DISTRICT COURT
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CENTRAL DISTRICT OF CALIFORNIA
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Case No. 3:11-cv-00205-H-KSC
Pleading Type: Class Action
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IN RE FERRERO LITIGATION
DECLARATION OF RONALD A.
MARRON IN SUPPORT OF
PLAINTIFFS’ MOTION FOR
APPROVAL OF ATTORNEY FEES
AND INCENTIVE AWARDS
Judge: The Honorable Marilyn L. Huff
Hearing: July 9, 2012
Time: 10:30 a.m.
Location: Courtroom 13
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In re Ferrero Litigation, Case No. 3:11-CV-00205-H-KSC
DECLARATION OF RONALD A. MARRON IN SUPPORT OF MOTION FOR APPROVAL OF ATTORNEY FEES AND
INCENTIVE AWARDS
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I, Ronald A. Marron, declare:
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1.
I am Class Counsel in this action. I am a member in good standing of the State Bar of
3 California and the United States District Courts for the Northern, Central, Eastern and Southern
4 Districts of California; and of the United States Court of Appeals for the Ninth Circuit. I make this
5 Declaration in support of Plaintiffs’ Motion for Approval of Attorney Fees and Inventive Awards. I
6 make this Declaration based on personal knowledge and if called to testify, I could and would testify
7 competently thereto.
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9
The Strength of the Settlement
2.
I believe the Settlement affords the Class an important benefit, specifically because
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10 Ferrero has agreed to a substantial injunctive relief. For example, Ferrero will change Nutella’s label,
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11 discontinue the existing television commercials and shoot new commercials with scripts that Class
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12 Counsel has reviewed and provided input on. Ferrero also agreed to change Nutella website to remove
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13 content attributable to the former Nutella spokesperson, purported children’s nutrition expert Connie
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14 Evers, and to no longer employ Ms. Evers as Nutella’s spokesperson.
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3.
As laid out in Plaintiffs’ First Amended Consolidated Complaint, the dangers of
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16 regularly consuming the amount of sugar and saturated fat in Nutella are well-documented. See FACC
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17 ¶¶ 35-43. By prominently disclosing Nutella’s sugar and fat content on the front label (or “Principal
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18 Display Panel”) using the Grocery Manufacturers Association front-of-pack nutrition labeling program,
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19 consumers will be better informed and able to make choices to promote their health and the health of
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20 their children and families. In addition, Ferrero’s agreement to stop using advertising suggestive that
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21 Nutella is healthy (such as “balanced breakfast”) will prevent well-meaning health-conscious
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22 consumers from inadvertently exposing themselves and their families to increased health risks.
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4.
Even though this alone would be a great benefit for the Class and the public, the
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24 Settlement is strong because it also includes a $550,000 fund by which Class Members can be refunded
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25 for up to five Nutella purchases. Our calculations, based on the sales information Ferrero provided in
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26 this case, show that this amounts to more than 3% of affected sales. False advertising actions such as
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In re Ferrero Litigation, Case No. 3:11-CV-00205-H-KSC
DECLARATION OF RONALD A. MARRON IN SUPPORT OF MOTION FOR APPROVAL OF ATTORNEY FEES AND
INCENTIVE AWARDS
1 this one often settle in that range, but without the addition of the extensive advertising and marketing
2 changes Ferrero has agreed to.
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5.
In sum, based on my experience and knowledge of the facts of this case, this Settlement
4 provides the Class and public a strong benefit, primarily from the extensive injunctive relief, but also
5 because of the addition of a monetary component.
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Media Coverage of the Settlement
6.
The Settlement has received considerable media attention in recent weeks, including
8 being featured on Good Morning America (which interviewed myself and Ms. Rude-Barbato), ABC
9 News, CBS News, npr.org, and many other popular outlets.
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7.
The portrayal of the Settlement and Plaintiffs in the media, especially Ms. Hohenberg,
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11 who was the “face” of the complaint, was difficult for our clients. Ms. Hohenberg and her daughter
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12 were ridiculed and harassed for her lawsuit against Ferrero, and her competence as a mother was
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13 attacked. There were plenty of negative internet articles about Ms. Hohenberg and her family. In one of
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14 them, Ms. Hohenberg was referred to as a “Nutella Nazi” and “a twit and everything that is wrong with
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15 this country.” In another, a person commented: “Apparently, Mrs. Athena Hohenberg has too much
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16 time on her hands! I am embarrassed at the greed, litigiousness and exploitative nature of so many
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17 people in our country.” See Exhibit 1 containing a compilation of the media reaction to the lawsuit
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18 and/or settlement and a “hate letter” addressed to Ms. Hohenberg.
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Class Representatives’ Efforts in Prosecuting this Action
8.
Both class representatives devoted substantial amount of time to this litigation. Ms.
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21 Hohenberg and Ms. Rude-Barbato met with their counsel frequently, both telephonically and in person,
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22 to discuss the developments of their case and prepare for their respective depositions. The class
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23 representatives attended two settlement conferences with Judge Bencivengo, reviewed pleadings and
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24 other legal documents, provided their answers to Ferrero’s Interrogatories and searched for documents
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25 responsive to Ferrero’s document requests. Further, both Ms. Hohenberg and Rude-Barbato were
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26 subject to embarrassment or discomfort by virtue of being examined during their depositions on
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In re Ferrero Litigation, Case No. 3:11-CV-00205-H-KSC
DECLARATION OF RONALD A. MARRON IN SUPPORT OF MOTION FOR APPROVAL OF ATTORNEY FEES AND
INCENTIVE AWARDS
1 sensitive personal matters such as their family’s food choices, and having years of their personal
2 purchases revealed after Ferrero subpoenaed records of their Costco purchasing history.
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Qualifications of Class Counsel
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9.
I have practiced civil litigation for over 17 years. Approximately 15 years ago, I started
5 my own law firm with an emphasis in consumer fraud. Over the years, I have acquired extensive
6 experience in class actions and other complex litigation and have obtained large settlements as lead
7 counsel. In recent years, I have devoted almost all of my practice to the area of consumer fraud, false
8 and misleading labeling of food, nutrition or over-the-counter products. I devoted 476.4 hours to this
9 action.
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10.
In appointing my firm Interim Lead Co-Class Counsel back in March of 2011, this Court
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11 recognized that Class Counsel “appears to be well qualified to represent the interest of the purported
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12 class and to manage this litigation.” Hohenberg v. Ferrero U.S.A., Inc., 2011 U.S. Dist. LEXIS 38471,
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13 at *6 (S.D. Cal. Mar. 22, 2011). Subsequently, when my firm obtained certification of the proposed
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14 class, this Court reaffirmed its finding that my firm is adequate Class Counsel. See In re Ferrero Litig.,
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15 278 F.R.D. 552, 559 (S.D. Cal. 2011).
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11.
Several other courts have recognized my firm’s ability to represent plaintiff classes in
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17 consumer fraud actions:
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•
On November 14, 2011 my firm obtained the certification of a nationwide class of
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consumers who purchased Qunol CoQ10, a dietary supplement making misleading efficacy
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claims. See Bruno v. Quten Research Inst., LLC, 2011 U.S. Dist. LEXIS 132323 (C.D. Cal.
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Nov. 14, 2011). My firm then successfully defeated the defendants’ motion to decertify the
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class following the Ninth Circuit’s decision in Mazza v. Am. Honda Motor Co., 666 F.3d
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581 (9th Cir. 2012). See Bruno v. Eckhart Corp., 2012 U.S. Dist. LEXIS 30873 (C.D. Cal.
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Mar. 6, 2012).
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•
On June 14, 2011, the Honorable Richard Seeborg appointed my firm Interim Class Counsel
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in a deceptive food labeling case. See Chacanaca v. Quaker Oats Co., 2011 U.S. Dist.
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LEXIS 65023, at *8-9 (N.D. Cal. June 14, 2011) (“There is no question here that both the
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In re Ferrero Litigation, Case No. 3:11-CV-00205-H-KSC
DECLARATION OF RONALD A. MARRON IN SUPPORT OF MOTION FOR APPROVAL OF ATTORNEY FEES AND
INCENTIVE AWARDS
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Weston/Marron counsel…have ample experience handling class actions and complex
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litigation. It is also clear that both have particular familiarity with suits involving issues of
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mislabeling in the food industry.”)
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•
I was appointed class counsel in Peterman v. North American Company for Life and Health
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Ins., et al., No. BC357194, (L.A. Co. Sup. Ct.), which was litigated for over 4 years and
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achieved a settlement of approximately $60 million for consumers. In granting preliminary
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approval of the settlement, the Hon. Carolyn B. Kuhl noted that “the excellent work that the
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plaintiffs’ side has done in this case has absolutely followed through to the settlement…The
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thought and detail that went into the preparation of every aspect was very impressive to
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me.” Excerpts from Transcript of Dec. 21, 2009 Hearing, at 2:12-17, a true and correct copy
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of which is attached hereto as Exhibit 2.
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•
I also served as class counsel in Clark v. National Western Life Insurance Company, No.
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BC321681 (L.A. Co. Sup. Ct.), a class action that, after litigating the case for well over 6
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years, resulted in a settlement of approximately $25 million for consumers.
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•
In Iorio v. Asset Marketing, No. 05cv00633-IEG (CAB) (S.D. Cal.), I was appointed class
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counsel on August 24, 2006, following class certification, which was granted on July 25,
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2006 by the Honorable Irma E. Gonzalez. Dkts. Nos. 113 and 121.
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After nearly 6 years of intensive litigation, a settlement valued at $110 million was reached
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in Iorio, supra, and approved on March 3, 2011, by the Honorable Janis Sammartino. Dkt.
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No. 480. Final Order approving class action settlement was entered on Mar. 3, 2011,
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commenting that class counsel were “highly experienced trial lawyers with specialized
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knowledge in insurance and annuity litigation, and complex class action litigation generally”
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and “capable of properly assessing the risks, expenses, and duration of continued litigation,
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including at trial and on appeal.” Judge Sammartino also noted “the complexity and subject
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matter of this litigation, and the skill and diligence with which it has been prosecuted and
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defended, and the quality of the result obtained for the Class.” Excerpts from March 3, 2011
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In re Ferrero Litigation, Case No. 3:11-CV-00205-H-KSC
DECLARATION OF RONALD A. MARRON IN SUPPORT OF MOTION FOR APPROVAL OF ATTORNEY FEES AND
INCENTIVE AWARDS
1
Order, at 7:18-23 and 17:25-27, a true and correct copy of which is attached hereto as
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Exhibit 3 attached hereto.
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•
Also, On March 1, 2012, the Honorable Janis L. Sammartino appointed my firm Interim
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Class Counsel in an action styled Margolis et al. v. The Dial Corporation, et al., currently
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pending in the United States District Court Southern District of California, Case No. 3:12-
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cv-00288-JLS-WVG (Dkt. No. 14). This case involves an OTC pheromone soap product
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that its manufacturer alleges enhances a man’s sexual attraction to women.
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12.
My firm has recently reached settlements in two other false labeling actions. Both of
9 these settlements were preliminary approved by the court:
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13.
On February 27, 2012, my firm settled a case against French homeopathic giant Boiron,
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11 Inc., pending in the Southern District of California, styled Gallucci et al. v. Boiron, Inc., et al., Case
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12 No. 3:11-CV-2039 JAH NLS. On March 6, 2012, the Plaintiffs filed a Motion for Preliminary
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13 Approval of Settlement, unopposed by Defendants. (Dkt. No. 64). On April 25, 2012, the Honorable
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14 John A. Houston granted the preliminary approval, noting that:
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During the pendency of the Litigation, Class Counsel conducted an extensive
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examination and evaluation of the relevant facts and law to assess the merits of the named
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plaintiffs’ and class claims to determine how best to serve the interests of Plaintiffs and
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the Class. . . . Class Counsel conducted thorough review of the Food, Drug and Cosmetic
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Act, its numerous changes over the years, and the Act’s implementing regulations. Class
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Counsel have carefully considered the merits of Plaintiffs’ claims, and the defenses raised
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by Defendants.
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22 Gallucci Dkt. No. 89 at i. Accordingly, Judge Houston appointed my firm and the Weston Firm as
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23 Class Counsel, finding that they “will fairly and adequately protect the interests of the Class . . . [and]
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24 are experienced and competent to prosecute this matter on behalf of the Class.” Id. at iii-iv.
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14.
On March 13, 2012, my firm settled a case against manufacturers of OTC probiotic
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26 supplement products, pending in the Southern District of California, styled Burton v. Ganeden Biotech,
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27 Inc. et al., Case No. 3:11-cv-01471-W-NLS. A Joint Motion for Preliminary Approval of Settlement,
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In re Ferrero Litigation, Case No. 3:11-CV-00205-H-KSC
DECLARATION OF RONALD A. MARRON IN SUPPORT OF MOTION FOR APPROVAL OF ATTORNEY FEES AND
INCENTIVE AWARDS
1 (Dkt. No. 38) in this action was granted on April 16, 2012 (Id. at 42). A Fairness Hearing in this case is
2 set for August 21, 2012. (Id.).
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15.
My firm’s former associate, Margarita Salazar, devoted 93 hours to the prosecution of
4 this action. Ms. Salazar, a Merit Fellows of Law scholarship recipient, and former White House intern,
5 graduated from law school in May 2002. Before joining my firm in 2011, Ms. Salazar worked for large
6 law firms, such as O’Melveny & Myers, Buchannan Ingersoll & Rooney, Bryan Cave, and McLeod
7 Law Group, representing clients in general commercial litigation as well as class actions.
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16.
My firm’s associate, Skye Resendes, devoted 17 hours to the prosecution of this action.
9 Ms. Resendes has been working in the legal field for over 20 years. Prior to attending law school, she
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10 worked as a judicial secretary in the San Diego Superior Court for approximately 6 years and as a legal
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11 assistant at large and mid-sized San Diego firms (such as DLA Piper and Gray Cary Ware &
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12 Freidenrich) for over 15 years. Ms. Resendes is a recipient of the prestigious national Burton Award for
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13 excellence in legal writing and graduated from law school summa cum laude in 2011. Ms. Resendes has
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14 received multiple Witkin Awards for Legal Excellence, a national Inns of Court Outstanding Program
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15 Award and was an editor of Thomas Jefferson Law Review for 3 years. Ms. Resendes also clerked for
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16 the Honorable Jeffrey B. Barton of the San Diego Superior Court and was a Jefferson Fellow Research
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17 Assistant. Her recent briefing in Allen v. Hyland’s led to a favorable decision on behalf of the firm’s
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18 clients in the face of the recent 9th Circuit decision in Mazza v. Am. Honda. To my knowledge, the
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19 Allen decision is one of only two post-Mazza decisions interpreting that case favorably to plaintiffs.
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20 The second favorable decision can be credited to co-counsel here, Jack Fitzgerald and the Weston firm.
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21 See Bruno v. Eckhart Corp., 2012 U.S. Dist. LEXIS 30873 (C.D. Cal. Mar. 6, 2012). Since joining my
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22 firm in November of last year, Ms. Resendes has dedicated her practice to the prosecution of plaintiff23
23 side consumer cases.
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17.
My firm’s associate, Maggie Realin, devoted 156.3 hours to the prosecution of this
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25 action. After attending law school in Europe where she graduated in 2004 in the top of her class, Ms.
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26 Realin obtained an LL.M. degree in Comparative Law from the University of San Diego School of
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27 Law. Ms. Realin has clerked for two judges, in both civil and criminal divisions of the Warsaw
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In re Ferrero Litigation, Case No. 3:11-CV-00205-H-KSC
DECLARATION OF RONALD A. MARRON IN SUPPORT OF MOTION FOR APPROVAL OF ATTORNEY FEES AND
INCENTIVE AWARDS
1 Superior Court. Between 2005 and 2010, Ms. Realin worked at a law office of a certified appellate law
2 specialist in San Diego, California, first as an intern and then as an attorney. Since joining my firm a
3 year ago, Ms. Realin has focused on representing consumers in class actions against large corporations,
4 specifically in the area of deceptive food labeling.
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Class Counsel’s Rates
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18.
The Law Offices of Ronald A. Marron’s requested rates are as follows:
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Timekeeper
Position
Graduation Year
Hourly Rate
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Ronald A. Marron
Principal
1994
$650
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Margarita Salazar
Associate
2002
$450
Maggie Realin
Associate
2004
$375
Skye Resendes
Associate
2011
$385
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Law Clerks
-
$225
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Paralegals
-
$215
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19.
These rates are consistent with the prevailing rates for attorneys of similar experience,
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16 skill and reputation in this District.
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20.
For example, in March 2011, the Honorable Janis L. Sammartino approved the rate of
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18 $750 for the top three billers in Iorio v. Allianz Life Ins. Co. of N. Am., Inc., the case where I served as a
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19 Class counsel. I was awarded my fees based on my hourly rate of $595, after having voluntarily
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20 reduced my rate, in deference to my co-counsel under the circumstances in that case, and in an exercise
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21 of billing discretion, which would otherwise have been $650. 2011 U.S. Dist. LEXIS 21824, at *31
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22 (S.D. Cal. Mar. 3, 2011). Specifically, the Honorable Janis L. Sammartino approved the following
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23 rates:
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25 / / /
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In re Ferrero Litigation, Case No. 3:11-CV-00205-H-KSC
DECLARATION OF RONALD A. MARRON IN SUPPORT OF MOTION FOR APPROVAL OF ATTORNEY FEES AND
INCENTIVE AWARDS
1
Position 1
Rate
Robert S. Gianelli
Partner
$750
Raymond E. Mattison
Partner
$750
Don A. Ernst
Partner
$750
Ronald A. Marron
Partner
$595
Timekeeper
2
3
4
5
6
7
Dean Goetz
Not Provided
$595
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Sherril Neil Babcock
Not Provided
$575
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Christopher D. Edgington
Associate
$575
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10
Jully C. Pae
Associate
$500
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11
Richard R. Fruto
Associate
$410
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12
Joanne Victor
Not Provided
$450
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13
Scott Juretic
Not Provided
$410
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Paralegals
-
$195
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21.
Similarly, several Southern District courts have approved specific fee rates similar to
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17 those of Class Counsel. These rates are consistent with the prevailing rates for attorneys of similar
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18 experience, skill and reputation. For example, several courts in this district have approved fee ranges
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19 into which Class Counsel’s rates easily fall. For example, in Hartless v. Clorox Co., 273 F.R.D. 630,
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20 644 (S.D. Cal. 2011), the Honorable Cathy Ann Bencivengo—the Magistrate Judge who assisted in
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21 reaching the Settlement Agreement in this case—affirmed rates of “$675 [sic] for an experienced
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22 partner’s time...” Id. at 644.
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1
See Iorio, No. 5-cv-633-JLS-CAB (S.D. Cal.), Dkt. No. 469 at 16-19 (fee motion describing
timekeepers’ experience).
2
See Hartless v. Clorox Co., No. 06-cv-2705-CAB (S.D. Cal.), Dkt. Nos. 82, 84-85, 87-88
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27 (declarations in support of motion for attorneys fees).
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In re Ferrero Litigation, Case No. 3:11-CV-00205-H-KSC
DECLARATION OF RONALD A. MARRON IN SUPPORT OF MOTION FOR APPROVAL OF ATTORNEY FEES AND
INCENTIVE AWARDS
1
22.
Other California district courts have approved even higher attorney fee rates. For
2 example, in CLRB Hanson Indus., LLC v. Weiss & Assocs., PC, 2012 WL 20539 (N.D. Cal. Jan. 5,
3 2012), the court found the hourly rates of two top billers reasonable at $1100 and $850. Case No. C054 03649, Dkt. No. 342. Even though the defendants appealed the attorneys’ fees award, the Ninth Circuit
5 affirmed the district court’s finding that the requested fees were justified. CLRB Hanson Indus., LLC v.
6 Weiss & Assocs., PC, 2012 WL 20539, at * 1.
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23.
Survey data also confirm the reasonableness of Class Counsel’s rates. A 2010 survey by
8 the National Law Journal 3 shows rates of firms in Los Angeles from $495-$820 for partners and $2709 $620 for associates; and in Irvine from $395-$710 for partners and $285-$450 for associates.
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10 According to the same survey, rates of attorneys at Luce, Forward, Hamilton & Scripps’ in San Diego
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11 are from $350-$670 for partners and $245-$445 for associates.
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12
24.
Thus, the firm’s requested partner rate of $650, and requested associate rate of $450,
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13 $385 and $375, based on experience, fall within and below the average/mean range of the typical rates
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14 of a San Diego law firm that practices complex litigation. See generally Catala v. Resurgent Capital
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15 Servs., L.P., 2010 U.S. Dist. LEXIS 63501, at *19 n.3 (S.D. Cal. June 22, 2010) (relying on same to
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16 award fees).
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17
25.
The Law Offices of Ronald A. Marron’s blended rate of $516.80 in this case
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18 ($441,037.00 divided by 853.4 hours) also falls below that recently approved by another Southern
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19 District court. Stuart v. RadioShack Corp., 2010 U.S. Dist. LEXIS 92067, at *16-18 (S.D. Cal. Aug. 9,
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20 2010) (finding blended rate of $708 reasonable, “particularly when no multiplier is being sought on top
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21 of the lodestar”).
22
22
26.
Finally, the Law Offices of Ronald A. Marron’s law clerk rate of $225 and paralegal rate
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23 of $215 is in a range commonly approved by other courts in this district. See, e.g., Craft v. County of
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24 San Bernardino, 624 F. Supp. 2d at 1122 (finding $200 rate reasonable for law clerks and $225 for
25
25
26
26
3
Copies of the NLJ surveys are in Class Counsel’s possession but are not being filed due to their
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27 volume.
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In re Ferrero Litigation, Case No. 3:11-CV-00205-H-KSC
DECLARATION OF RONALD A. MARRON IN SUPPORT OF MOTION FOR APPROVAL OF ATTORNEY FEES AND
INCENTIVE AWARDS
1 paralegals); Iorio, 2011 U.S. Dist. LEXIS 21824, at *32 (finding $195 rate reasonable for paralegals);
2 Vasquez, 2011 U.S. Dist. LEXIS 83696, at *6 (approving rates between $160 and $210 for paralegals);
3 Create-A-Card, 2009 WL 3073920, at *2 (approving rates of $150-$235 for paralegals).
4
5
Class Counsel’s Time Billed
27.
Our firm’s practice is to keep contemporaneous records for each timekeeper and to
6 regularly record time records in the normal course of business; and we kept time records in this case
7 consistent with that practice. Moreover, our firm’s practice is to bill in 6-minute (tenth-of-an-hour)
8 increments. The firm’s billing records are available to submit to the Court for in camera review upon
9 request.
10
10
28.
The total lodestar for the Law Offices of Ronald A. Marron is $441,037.00, reflecting
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11 742.7 attorney hours, 56.9 law clerk hour and 53.8 paralegal hours (853.4 total hours). 4 The Law
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12 Offices of Ronald A. Marron’s lodestar is summarized in Appendix 1 to Plaintiffs’ fee motion. Prior to
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13 finalizing the firm’s lodestar, we carefully reviewed our hours and made cuts for time entry errors,
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14 duplications, and instances where we determined the hours should be reduced or not billed.
15
15
29.
Although the hours billed may be relatively high given the length of the litigation, that is
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16 so because of its intensity, as the Docket evidences, including four complaints (Hohenberg, Rude17
17 Barbato, Master Consolidated Complaint, First Amended Consolidated Complaint); briefing many
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18 substantive and procedural motions and an MDL motion; attending three settlement conferences or
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19 mediations; and engaging in substantial written discovery and depositions, including from nine third
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20 parties, all in the course of less than a year. The time also reflects Class Counsel’s work on behalf of
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21 Plaintiffs in attempting to intervene in the New Jersey actions in order to protect the interests of the
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22 then-putative class from both inconsistent decisions and judgments which might have an effect in this
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23 case, and from a reverse auction scenario by counsel more interested in settling the case away from
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24 Plaintiffs than litigating it for their benefit.
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4
As noted in Class Counsel’s fee application, App. 1 n.1, Class Counsel’s total lodestar includes
post-application time at a blended rate. That time, however, is not specifically addressed here.
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In re Ferrero Litigation, Case No. 3:11-CV-00205-H-KSC
DECLARATION OF RONALD A. MARRON IN SUPPORT OF MOTION FOR APPROVAL OF ATTORNEY FEES AND
INCENTIVE AWARDS
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Class Counsel’s Expenses
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A summary of my firm’s expenses in the amount of $18,066.15 is provided in Appendix
3 2 to Plaintiffs’ fee application. This includes $7,207.12 in recoverable costs, consisting of costs for
4 court fees, deposition costs for transcribing, recording and travel, and service of process fees, and
5 $10,859.03 in costs reasonably necessary to prosecute this action, including, for example, travel costs
6 associated with court hearings, transportation and parking costs, costs for local New Jersey counsel (as
7 required by that court’s local rules), costs of attending mediation in Florida and deposition supplies.
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31.
My firm incurred additional costs for which it does not seek reimbursement, including
9 photocopying, telephone and fax charges, legal research and PACER, postage and meals. I estimate
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10 those charges to be more than $10,000.
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I declare under penalty of perjury that the foregoing is true and correct to the best of my
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12 knowledge. Executed on May 25, 2012 in San Diego, California.
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/s/ Ronald A. Marron
Ronald A. Marron
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In re Ferrero Litigation, Case No. 3:11-CV-00205-H-KSC
DECLARATION OF RONALD A. MARRON IN SUPPORT OF MOTION FOR APPROVAL OF ATTORNEY FEES AND
INCENTIVE AWARDS
1 DATED: May 25, 2012
Respectfully Submitted,
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/s/ Jack Fitzgerald
Jack Fitzgerald
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THE WESTON FIRM
GREGORY S. WESTON
JACK FITZGERALD
MELANIE PERSINGER
COURTLAND CREEKMORE
1405 Morena Blvd., Suite 201
San Diego, CA 92109
Telephone: (619) 798-2006
Facsimile: (480) 247-4553
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LAW OFFICES OF RONALD
A. MARRON, APLC
RONALD A. MARRON
MAGGIE REALIN
B. SKYE RESENDES
3636 4th Street, Suite 202
San Diego, CA 92103
Telephone: (619) 696-9006
Facsimile: (619) 564-6665
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Class Counsel
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In re Ferrero Litigation, Case No. 3:11-CV-00205-H-KSC
DECLARATION OF RONALD A. MARRON IN SUPPORT OF MOTION FOR APPROVAL OF ATTORNEY FEES AND
INCENTIVE AWARDS
Table of Exhibits
EXHIBIT
NUMBER
Exhibit 1
Exhibit 2
Exhibit 3
EXHIBIT DESCRIPTION
PAGE NUMBERS
News Articles, Comments, and
Letters regarding Case and Athena
Excerpts from Transcript of Dec.
21, 2009 Hearing at 2:12-17
Iorio’s Final Order: (1) Approving
Class Action Settlement, (2)
Awarding Class Counsel Fees and
Expenses, (3) Awarding Class
Representatives Incentives, (4)
Permanently Enjoining Parallel
Proceedings, and (5) Dismissing
Action with Prejudice
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12-35
EXHIBIT 1
Dear Mrs_Athena Hohenberg
T a day I read in a
, that you we re shocked about the fact, how unhealthy
is_ It was
written that you found out, that the sweet breakfast chocolate spread is not as balanced as the
promotion of
does mention it _ You recogn ized that Nutella is not bette r than any sweets _ And
you o bse rved on top of it , that Nutella has a b ig amount of saturates _
Well , yes : Nutella i s sweet' I guess it i s as sweet in San Diego .' California .' USA as it i s in Barden be rg .'
North Rh ine-Westphalia .' Ge r many_ Here in my little hometown it tastes great_ And I love i t l
Q _ I enj oy Nute lla just once in a while _ Not eve ry day_ And not the whole day_ And not excessive _
K_,
Because I can read_ After all on my
glass of Nutella it is written, what kind
and in wh ich amount ingredients are in
pro100g pro 15g GOA'/ 15g
NiiHRWERTE
on you r g lass aswe iL The refo re I place
Energiewert kcal
kJ
ElweiB
g
Koh/enhydrate g
an image just he re _ Sorry 1 . s wnnen
t
davon Zucker
g
in Ge r man language , but might loo k
Fett
g
sim ilar to you rs i n american Eng lish _
the
davon gesiittigte
Fettsiiuren
g
ve ry
Ballaststoffe
Natrium
g
g
Nute lla _ That hel p
me to d isci pline
myself not to cram fu ll in me that stuff_
Of course I don· t k now, if it i s written
Maybe
you
have
a
loo k
at
backs ide of you r g lass Nutella _
I understand , that you are a
res pons ib le mothe r_ You really liv e an
ex em p lary fu nction towards you r ch ild _
And in that function it must worry you ,
w hen a commercia l is m islead ing _
Neverthe less
understand
you r
wo rries , I th ink w e are qu iet d iffe r-ent_
First of a ll : I do not eat Nute lla a ll day
long _ I mentioned lt _
Second ly
1· m aware , that too much
547
2282
6,6
56,8
55,9
31,8
82
343
1,0
8,5
8,4
4,8
2%
3%
9%
7%
10,7
3,5
0,040
1,6
0,5
8%
2%
0,006
0%
4%
·GOA: Richtwert liir dieTageszufuhr eines E
rwachSenen basierend auf einer Ernahrung m~ durchschnittlich 2.000 kcal. D
er
Bedart an N
ahrstoffen kannnacll Geschlecht, Alter, kiirperlicher
Aktivitat und anderen Faktoren hOher oder niedriger sein.
pro 11XJg RDA ..ItiXJg pro 15g RDA'*/15g
Vitamin E mg 7,8 65%
1,2 10%
Kalium
mg 450 22%
68
3%
Calcium mg 128 16%
19
2%
Eisen
mg 2,5
17% 0,4
3%
Magnesium mg 79 21%
12
3%
~ADA:
P
rozentsatz der empfo
hlenen Tagesmenge
Nute lla can· t be healthy_ But isn · t it
no r mal w ith eve ry th ing7 To muc h Big
Macs makes you sick_ To much Co la makes you sick_ To much coffee makes you sick_ To much of
someth ing makes you sick_It 's no r mal I To me and a lot of peo p le he re in Ge r many_
T hird ly: I don· t be lieve any commercia ls_ Of course they want to se ll the ir products and of course in
the ir understand ing eve rything is great w ith it _ Didn · t you k now th is7
And I te ll you , I don· t be lieve ev e rything w hat is said in TV_ And I don· t be lieve eve rything w hat is
written in newspape rs and magaz ines _ So maybe th is article about you and you r fig ht against Fe rre ro
is a fake , too _ Eventually I can· t b e lieve th is story_
Be assure , if I wou ld stay in San D iego , I wou ld buy Nute lla the re , too _Just li ke you _ Maybe I wou ld not
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T JP •
0 ~9 0
23 days ago
Sweet m erciful crap what a fuc#ing world we live in . Unbelievable. I hope t his woman gets
brain cancer.
• Reply
Cory • Port Coqualam, Canada •
23 days ago
o ~ :t;;:~ o
Typical Americans, sue, sue sue. Why is t his story on a Canadian site? If I went over t he
boarder and bought a jar, I still can't get my money back because I don't live in t he states.
What a bunch of Yahoos.
• 1 Reply
Raiders757 • Norfolk, Virginia •
25 days ago
11 ~ 9 0
I t hink I'll file a law suit against A nheuser-Busch lnBev. A ll t hese years I t hought Budweiser
was t he " breakfast of champions" and an alternative to cereal in t he mornings. Come to
find out, it's just watered down beer.
• 4 Replies
Jmn • Ottaw a, Canada •
23 days ago
0 ~9 0
FIRST INGREDIENT IS SUGAR IF SHE COULD REA D SHE WOULD KNOW. 21grams of
sugar is 2 t bsp (which means 2 table spoons) if she j ust watches tv commercials and
takes t hei word for it well t hat is stupidity on her part and t he courts who awarded t he
money. Just like peanut butter are we suing t hem ... More
• Reply
Silvia M • Santa Monica, California •
22 days ago
0 ~9 0
The whol e story is ridiculous!
North America does not have t he culture, t he knowledge and t he value of healthy nutrition.
Nutella purchased here is produced in Canada with s orne unaware ingredients which are
not t hat healthy as in Italy. The scary part is in America, companies injects ... More
• Reply
I'm Right, You're ... •
25 days ago
55 ~ 9 2
these frivolous lawsuits kill me, my dad had a lawsuit i t hough was pretty darn legitimate
when he went to his eye doctor several t imes complaining about vision loss and by t he
time t he eye doctor referred my dad to a specialist w here it was discovered he had
glaucom a he had already lost an ... More
• 10 Replies
Truth sayer •
12 ~ 9 0
25 days ago
So t he lawyer pockets a ton of change, t he mom gets her cut, and everybody else pays
more for t he product. How did t his woman suffer? Thi s is what is wrong with Amerika.
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