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).

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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 10 11 UNITED STATES DISTRICT COURT 12 CENTRAL DISTRICT OF CALIFORNIA 13 Case No. 3:11-cv-00205-H-KSC Pleading Type: Class Action 14 15 16 17 18 19 20 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 21 22 23 24 25 26 27 28 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 I, Ronald A. Marron, declare: 2 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. 8 9 The Strength of the Settlement 2. I believe the Settlement affords the Class an important benefit, specifically because 10 10 Ferrero has agreed to a substantial injunctive relief. For example, Ferrero will change Nutella’s label, 11 11 discontinue the existing television commercials and shoot new commercials with scripts that Class 12 12 Counsel has reviewed and provided input on. Ferrero also agreed to change Nutella website to remove 13 13 content attributable to the former Nutella spokesperson, purported children’s nutrition expert Connie 14 14 Evers, and to no longer employ Ms. Evers as Nutella’s spokesperson. 15 15 3. As laid out in Plaintiffs’ First Amended Consolidated Complaint, the dangers of 16 16 regularly consuming the amount of sugar and saturated fat in Nutella are well-documented. See FACC 17 17 ¶¶ 35-43. By prominently disclosing Nutella’s sugar and fat content on the front label (or “Principal 18 18 Display Panel”) using the Grocery Manufacturers Association front-of-pack nutrition labeling program, 19 19 consumers will be better informed and able to make choices to promote their health and the health of 20 20 their children and families. In addition, Ferrero’s agreement to stop using advertising suggestive that 21 21 Nutella is healthy (such as “balanced breakfast”) will prevent well-meaning health-conscious 22 22 consumers from inadvertently exposing themselves and their families to increased health risks. 23 23 4. Even though this alone would be a great benefit for the Class and the public, the 24 24 Settlement is strong because it also includes a $550,000 fund by which Class Members can be refunded 25 25 for up to five Nutella purchases. Our calculations, based on the sales information Ferrero provided in 26 26 this case, show that this amounts to more than 3% of affected sales. False advertising actions such as 27 27 28 28 1 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. 3 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. 6 7 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. 10 10 7. The portrayal of the Settlement and Plaintiffs in the media, especially Ms. Hohenberg, 11 11 who was the “face” of the complaint, was difficult for our clients. Ms. Hohenberg and her daughter 12 12 were ridiculed and harassed for her lawsuit against Ferrero, and her competence as a mother was 13 13 attacked. There were plenty of negative internet articles about Ms. Hohenberg and her family. In one of 14 14 them, Ms. Hohenberg was referred to as a “Nutella Nazi” and “a twit and everything that is wrong with 15 15 this country.” In another, a person commented: “Apparently, Mrs. Athena Hohenberg has too much 16 16 time on her hands! I am embarrassed at the greed, litigiousness and exploitative nature of so many 17 17 people in our country.” See Exhibit 1 containing a compilation of the media reaction to the lawsuit 18 18 and/or settlement and a “hate letter” addressed to Ms. Hohenberg. 19 19 20 20 Class Representatives’ Efforts in Prosecuting this Action 8. Both class representatives devoted substantial amount of time to this litigation. Ms. 21 21 Hohenberg and Ms. Rude-Barbato met with their counsel frequently, both telephonically and in person, 22 22 to discuss the developments of their case and prepare for their respective depositions. The class 23 23 representatives attended two settlement conferences with Judge Bencivengo, reviewed pleadings and 24 24 other legal documents, provided their answers to Ferrero’s Interrogatories and searched for documents 25 25 responsive to Ferrero’s document requests. Further, both Ms. Hohenberg and Rude-Barbato were 26 26 subject to embarrassment or discomfort by virtue of being examined during their depositions on 27 27 28 28 2 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. 3 Qualifications of Class Counsel 4 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. 10 10 10. In appointing my firm Interim Lead Co-Class Counsel back in March of 2011, this Court 11 11 recognized that Class Counsel “appears to be well qualified to represent the interest of the purported 12 12 class and to manage this litigation.” Hohenberg v. Ferrero U.S.A., Inc., 2011 U.S. Dist. LEXIS 38471, 13 13 at *6 (S.D. Cal. Mar. 22, 2011). Subsequently, when my firm obtained certification of the proposed 14 14 class, this Court reaffirmed its finding that my firm is adequate Class Counsel. See In re Ferrero Litig., 15 15 278 F.R.D. 552, 559 (S.D. Cal. 2011). 16 16 11. Several other courts have recognized my firm’s ability to represent plaintiff classes in 17 17 consumer fraud actions: 18 18 • On November 14, 2011 my firm obtained the certification of a nationwide class of 19 19 consumers who purchased Qunol CoQ10, a dietary supplement making misleading efficacy 20 20 claims. See Bruno v. Quten Research Inst., LLC, 2011 U.S. Dist. LEXIS 132323 (C.D. Cal. 21 21 Nov. 14, 2011). My firm then successfully defeated the defendants’ motion to decertify the 22 22 class following the Ninth Circuit’s decision in Mazza v. Am. Honda Motor Co., 666 F.3d 23 23 581 (9th Cir. 2012). See Bruno v. Eckhart Corp., 2012 U.S. Dist. LEXIS 30873 (C.D. Cal. 24 24 Mar. 6, 2012). 25 25 • On June 14, 2011, the Honorable Richard Seeborg appointed my firm Interim Class Counsel 26 26 in a deceptive food labeling case. See Chacanaca v. Quaker Oats Co., 2011 U.S. Dist. 27 27 LEXIS 65023, at *8-9 (N.D. Cal. June 14, 2011) (“There is no question here that both the 3 28 28 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 Weston/Marron counsel…have ample experience handling class actions and complex 2 litigation. It is also clear that both have particular familiarity with suits involving issues of 3 mislabeling in the food industry.”) 4 • I was appointed class counsel in Peterman v. North American Company for Life and Health 5 Ins., et al., No. BC357194, (L.A. Co. Sup. Ct.), which was litigated for over 4 years and 6 achieved a settlement of approximately $60 million for consumers. In granting preliminary 7 approval of the settlement, the Hon. Carolyn B. Kuhl noted that “the excellent work that the 8 plaintiffs’ side has done in this case has absolutely followed through to the settlement…The 9 thought and detail that went into the preparation of every aspect was very impressive to 10 10 me.” Excerpts from Transcript of Dec. 21, 2009 Hearing, at 2:12-17, a true and correct copy 11 11 of which is attached hereto as Exhibit 2. 12 12 • I also served as class counsel in Clark v. National Western Life Insurance Company, No. 13 13 BC321681 (L.A. Co. Sup. Ct.), a class action that, after litigating the case for well over 6 14 14 years, resulted in a settlement of approximately $25 million for consumers. 15 15 • In Iorio v. Asset Marketing, No. 05cv00633-IEG (CAB) (S.D. Cal.), I was appointed class 16 16 counsel on August 24, 2006, following class certification, which was granted on July 25, 17 17 2006 by the Honorable Irma E. Gonzalez. Dkts. Nos. 113 and 121. 18 18 • After nearly 6 years of intensive litigation, a settlement valued at $110 million was reached 19 19 in Iorio, supra, and approved on March 3, 2011, by the Honorable Janis Sammartino. Dkt. 20 20 No. 480. Final Order approving class action settlement was entered on Mar. 3, 2011, 21 21 commenting that class counsel were “highly experienced trial lawyers with specialized 22 22 knowledge in insurance and annuity litigation, and complex class action litigation generally” 23 23 and “capable of properly assessing the risks, expenses, and duration of continued litigation, 24 24 including at trial and on appeal.” Judge Sammartino also noted “the complexity and subject 25 25 matter of this litigation, and the skill and diligence with which it has been prosecuted and 26 26 defended, and the quality of the result obtained for the Class.” Excerpts from March 3, 2011 27 27 28 28 4 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 2 Exhibit 3 attached hereto. 3 • Also, On March 1, 2012, the Honorable Janis L. Sammartino appointed my firm Interim 4 Class Counsel in an action styled Margolis et al. v. The Dial Corporation, et al., currently 5 pending in the United States District Court Southern District of California, Case No. 3:12- 6 cv-00288-JLS-WVG (Dkt. No. 14). This case involves an OTC pheromone soap product 7 that its manufacturer alleges enhances a man’s sexual attraction to women. 8 12. My firm has recently reached settlements in two other false labeling actions. Both of 9 these settlements were preliminary approved by the court: 10 10 13. On February 27, 2012, my firm settled a case against French homeopathic giant Boiron, 11 11 Inc., pending in the Southern District of California, styled Gallucci et al. v. Boiron, Inc., et al., Case 12 12 No. 3:11-CV-2039 JAH NLS. On March 6, 2012, the Plaintiffs filed a Motion for Preliminary 13 13 Approval of Settlement, unopposed by Defendants. (Dkt. No. 64). On April 25, 2012, the Honorable 14 14 John A. Houston granted the preliminary approval, noting that: 15 15 During the pendency of the Litigation, Class Counsel conducted an extensive 16 16 examination and evaluation of the relevant facts and law to assess the merits of the named 17 17 plaintiffs’ and class claims to determine how best to serve the interests of Plaintiffs and 18 18 the Class. . . . Class Counsel conducted thorough review of the Food, Drug and Cosmetic 19 19 Act, its numerous changes over the years, and the Act’s implementing regulations. Class 20 20 Counsel have carefully considered the merits of Plaintiffs’ claims, and the defenses raised 21 21 by Defendants. 22 22 Gallucci Dkt. No. 89 at i. Accordingly, Judge Houston appointed my firm and the Weston Firm as 23 23 Class Counsel, finding that they “will fairly and adequately protect the interests of the Class . . . [and] 24 24 are experienced and competent to prosecute this matter on behalf of the Class.” Id. at iii-iv. 25 25 14. On March 13, 2012, my firm settled a case against manufacturers of OTC probiotic 26 26 supplement products, pending in the Southern District of California, styled Burton v. Ganeden Biotech, 27 27 Inc. et al., Case No. 3:11-cv-01471-W-NLS. A Joint Motion for Preliminary Approval of Settlement, 28 28 5 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.). 3 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. 8 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 10 10 worked as a judicial secretary in the San Diego Superior Court for approximately 6 years and as a legal 11 11 assistant at large and mid-sized San Diego firms (such as DLA Piper and Gray Cary Ware & 12 12 Freidenrich) for over 15 years. Ms. Resendes is a recipient of the prestigious national Burton Award for 13 13 excellence in legal writing and graduated from law school summa cum laude in 2011. Ms. Resendes has 14 14 received multiple Witkin Awards for Legal Excellence, a national Inns of Court Outstanding Program 15 15 Award and was an editor of Thomas Jefferson Law Review for 3 years. Ms. Resendes also clerked for 16 16 the Honorable Jeffrey B. Barton of the San Diego Superior Court and was a Jefferson Fellow Research 17 17 Assistant. Her recent briefing in Allen v. Hyland’s led to a favorable decision on behalf of the firm’s 18 18 clients in the face of the recent 9th Circuit decision in Mazza v. Am. Honda. To my knowledge, the 19 19 Allen decision is one of only two post-Mazza decisions interpreting that case favorably to plaintiffs. 20 20 The second favorable decision can be credited to co-counsel here, Jack Fitzgerald and the Weston firm. 21 21 See Bruno v. Eckhart Corp., 2012 U.S. Dist. LEXIS 30873 (C.D. Cal. Mar. 6, 2012). Since joining my 22 22 firm in November of last year, Ms. Resendes has dedicated her practice to the prosecution of plaintiff23 23 side consumer cases. 24 24 17. My firm’s associate, Maggie Realin, devoted 156.3 hours to the prosecution of this 25 25 action. After attending law school in Europe where she graduated in 2004 in the top of her class, Ms. 26 26 Realin obtained an LL.M. degree in Comparative Law from the University of San Diego School of 27 27 Law. Ms. Realin has clerked for two judges, in both civil and criminal divisions of the Warsaw 28 28 6 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. 5 Class Counsel’s Rates 6 18. The Law Offices of Ronald A. Marron’s requested rates are as follows: 7 Timekeeper Position Graduation Year Hourly Rate 8 Ronald A. Marron Principal 1994 $650 9 Margarita Salazar Associate 2002 $450 Maggie Realin Associate 2004 $375 Skye Resendes Associate 2011 $385 10 10 11 11 12 12 Law Clerks - $225 13 13 Paralegals - $215 14 14 15 15 19. These rates are consistent with the prevailing rates for attorneys of similar experience, 16 16 skill and reputation in this District. 17 17 20. For example, in March 2011, the Honorable Janis L. Sammartino approved the rate of 18 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 19 19 Class counsel. I was awarded my fees based on my hourly rate of $595, after having voluntarily 20 20 reduced my rate, in deference to my co-counsel under the circumstances in that case, and in an exercise 21 21 of billing discretion, which would otherwise have been $650. 2011 U.S. Dist. LEXIS 21824, at *31 22 22 (S.D. Cal. Mar. 3, 2011). Specifically, the Honorable Janis L. Sammartino approved the following 23 23 rates: 24 24 / / / 25 25 / / / 26 26 / / / 27 27 / / / 28 28 7 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 8 Sherril Neil Babcock Not Provided $575 9 Christopher D. Edgington Associate $575 10 10 Jully C. Pae Associate $500 11 11 Richard R. Fruto Associate $410 12 12 Joanne Victor Not Provided $450 13 13 Scott Juretic Not Provided $410 14 14 Paralegals - $195 15 15 16 16 21. Similarly, several Southern District courts have approved specific fee rates similar to 17 17 those of Class Counsel. These rates are consistent with the prevailing rates for attorneys of similar 18 18 experience, skill and reputation. For example, several courts in this district have approved fee ranges 19 19 into which Class Counsel’s rates easily fall. For example, in Hartless v. Clorox Co., 273 F.R.D. 630, 20 20 644 (S.D. Cal. 2011), the Honorable Cathy Ann Bencivengo—the Magistrate Judge who assisted in 21 21 reaching the Settlement Agreement in this case—affirmed rates of “$675 [sic] for an experienced 2 22 22 partner’s time...” Id. at 644. 23 23 24 24 25 25 26 26 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 27 27 (declarations in support of motion for attorneys fees). 28 28 8 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. 7 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. 10 10 According to the same survey, rates of attorneys at Luce, Forward, Hamilton & Scripps’ in San Diego 11 11 are from $350-$670 for partners and $245-$445 for associates. 12 12 24. Thus, the firm’s requested partner rate of $650, and requested associate rate of $450, 13 13 $385 and $375, based on experience, fall within and below the average/mean range of the typical rates 14 14 of a San Diego law firm that practices complex litigation. See generally Catala v. Resurgent Capital 15 15 Servs., L.P., 2010 U.S. Dist. LEXIS 63501, at *19 n.3 (S.D. Cal. June 22, 2010) (relying on same to 16 16 award fees). 17 17 25. The Law Offices of Ronald A. Marron’s blended rate of $516.80 in this case 18 18 ($441,037.00 divided by 853.4 hours) also falls below that recently approved by another Southern 19 19 District court. Stuart v. RadioShack Corp., 2010 U.S. Dist. LEXIS 92067, at *16-18 (S.D. Cal. Aug. 9, 20 20 2010) (finding blended rate of $708 reasonable, “particularly when no multiplier is being sought on top 21 21 of the lodestar”). 22 22 26. Finally, the Law Offices of Ronald A. Marron’s law clerk rate of $225 and paralegal rate 23 23 of $215 is in a range commonly approved by other courts in this district. See, e.g., Craft v. County of 24 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 27 27 volume. 28 28 9 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 11 11 742.7 attorney hours, 56.9 law clerk hour and 53.8 paralegal hours (853.4 total hours). 4 The Law 12 12 Offices of Ronald A. Marron’s lodestar is summarized in Appendix 1 to Plaintiffs’ fee motion. Prior to 13 13 finalizing the firm’s lodestar, we carefully reviewed our hours and made cuts for time entry errors, 14 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 16 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 18 18 substantive and procedural motions and an MDL motion; attending three settlement conferences or 19 19 mediations; and engaging in substantial written discovery and depositions, including from nine third 20 20 parties, all in the course of less than a year. The time also reflects Class Counsel’s work on behalf of 21 21 Plaintiffs in attempting to intervene in the New Jersey actions in order to protect the interests of the 22 22 then-putative class from both inconsistent decisions and judgments which might have an effect in this 23 23 case, and from a reverse auction scenario by counsel more interested in settling the case away from 24 24 Plaintiffs than litigating it for their benefit. 25 25 26 26 27 27 28 28 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. 10 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 2 Class Counsel’s Expenses 30. 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. 8 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 10 10 those charges to be more than $10,000. 11 11 I declare under penalty of perjury that the foregoing is true and correct to the best of my 12 12 knowledge. Executed on May 25, 2012 in San Diego, California. 13 13 14 14 /s/ Ronald A. Marron Ronald A. Marron 15 15 16 16 17 17 18 18 19 19 20 20 21 21 22 22 23 23 24 24 25 25 26 26 27 27 28 28 11 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, 2 /s/ Jack Fitzgerald Jack Fitzgerald 3 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 4 5 6 7 8 9 14 14 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 15 15 Class Counsel 10 10 11 11 12 12 13 13 16 16 17 17 18 18 19 19 20 20 21 21 22 22 23 23 24 24 25 25 26 26 27 27 28 28 12 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 1-10 11 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 EXHIBIT 1 PAGE 1 EXHIBIT 1 PAGE 2 EXHIBIT 1 PAGE 3 EXHIBIT 1 PAGE 4 EXHIBIT 1 PAGE 5 EXHIBIT 1 PAGE 6 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. EXHIBIT 1 PAGE 7 EXHIBIT 1 PAGE 8 EXHIBIT 1 PAGE 9 EXHIBIT 1 PAGE 10 EXHIBIT 2 EXHIBIT 2 PAGE 11 EXHIBIT 3 EXHIBIT 3 PAGE 12 EXHIBIT 3 PAGE 13 EXHIBIT 3 PAGE 14 EXHIBIT 3 PAGE 15 EXHIBIT 3 PAGE 16 EXHIBIT 3 PAGE 17 EXHIBIT 3 PAGE 18 EXHIBIT 3 PAGE 19 EXHIBIT 3 PAGE 20 EXHIBIT 3 PAGE 21 EXHIBIT 3 PAGE 22 EXHIBIT 3 PAGE 23 EXHIBIT 3 PAGE 24 EXHIBIT 3 PAGE 25 EXHIBIT 3 PAGE 26 EXHIBIT 3 PAGE 27 EXHIBIT 3 PAGE 28 EXHIBIT 3 PAGE 29 EXHIBIT 3 PAGE 30 EXHIBIT 3 PAGE 31 EXHIBIT 3 PAGE 32 EXHIBIT 3 PAGE 33 EXHIBIT 3 PAGE 34 EXHIBIT 3 PAGE 35

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