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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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA

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IN RE FERRERO LITIGATION

CASE NO. 11-CV-00205-H (CAB)

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AFFIDAVIT OF CHARLENE YOUNG
RE: DISSEMINATION OF NOTICE OF CLASS SETTLEMENT,
AND INFORMATION REGARDING CLAIMS SUBMITTED TO DATE

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STATE OF FLORIDA

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) SS:
COUNTY OF PALM BEACH )

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CHARLENE YOUNG, being duly sworn, deposes and states as follows:

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1.

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of the Order Granting Joint Motion for Preliminary Approval of Settlement (“the Preliminary

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Approval Order”) dated January 23, 2012, Rust was appointed as Claims Administrator. I am

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I am a Senior Project Administrator for Rust Consulting, Inc. (“Rust”). Pursuant to ¶3

over 21 years of age and am not a party to this action. I have personal knowledge of the facts

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set forth herein and, if called as a witness could and would testify competently to the facts set

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forth in this Affidavit.
2.

I submit this Affidavit in order to provide the Court and the parties to the above-

captioned action with information regarding the dissemination of the Notice of Class Action

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Settlement and Claim Form (the “Notice Packet”) to potential members of the Settlement
Class. A copy of the Notice Packet is attached hereto as Exhibit 1.
3.

Pursuant to ¶¶3 (a) and 3 (b), Rust caused the Summary Notice to be published in the

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following magazines: Parents (May 2012 issue, page 172, circulation 2,200,000), People

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(April 16, 2012, page 63, circulation, 3,450,000), Ser Padres (May 2012 issue, page 51,

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circulation 800,000) and Woman’s Day (May 2012 issue, page 138, circulation 3,250,000).

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Copies of the tear sheets are attached hereto as Exhibit 2. In addition, banner ads were posted

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on the following third-party websites:

24/7 Real Media Network – Parenting Channel

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(5,000,000 impressions from April 6, 2012 through April 20, 2012) and Facebook (10,000,000

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impressions from April 6, 2012 through April 20, 2012). Copies of the banner ads are attached

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hereto as Exhibit 3.

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4.

Pursuant to ¶3 (c) of the Preliminary Approval Order, Rust established a dedicated

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settlement website, www.nutellaclassactionsettlement.com, which went ‘live’ on March 2,

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2012. The website contains the Settlement Agreement, Class Notice, and information relating

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to filing a claim, opting out of the Settlement, objecting to the Settlement, deadlines relating to

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the Settlement, Frequently Asked Questions and other information relevant to the Settlement.

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Additionally, the Settlement Website contains an electronic Claim Form to allow on-line

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submissions of claims as well as a Claim Form which can be downloaded, printed and mailed

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to the Claims Administrator. The Settlement Website also contains Spanish versions of the

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Notice, Claim Form and Frequently Asked Questions. As of May 23, 2012, the website has

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been visited approximately 1,078,410 times.

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attached hereto as Exhibit 4.

A screen shot of the website homepage is

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5.

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Settlement Class Members. Rust leases and maintains a case-dedicated Post Office, P.O. Box

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8030 Faribault, MN 55021-9430, for the receipt of Claim Forms, Requests for Exclusion, and

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all written communications necessary to the administration of the Settlement, including from

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Rust has acted as a repository for inquiries and communications from potential

potential Settlement Class Members.

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6.

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caller to the toll-free telephone number is able to listen to a pre-recorded message which

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Rust also maintains a case-dedicated toll-free telephone number, 877-497-5858. A

answers many frequently asked questions, and is then prompted to press a telephone keypad

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number to request a Notice Packet be mailed to their address or to leave a message requesting

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a return call from a representative. As of May 23, 2012, approximately 1,264 calls have been

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received. Of those, 48 potential claimants have requested Notice Packets. Three (3) additional

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requests for Notice Packets were received via mail. Between April 19, 2012 and May 23,

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2012, Rust mailed 50 Notice Packets. The one (1) additional Notice Packet will be included in

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next week’s mailing.

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7.

As of May 23, 2012, we have not received any undeliverable mail.

8.

Pursuant to ¶7 (a) of the Preliminary Approval Order, objections must be filed or

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delivered no later than June 8, 2012. As of May 23, 2012, Rust has received no objections

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from potential Settlement Class Members.

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9.

Pursuant to ¶8 of the Preliminary Approval Order, a Request for Exclusion must be

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postmarked no later than June 8, 2012. As of May 23, 2012, Rust has received timely

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Requests for Exclusion from one (1) resident of California and four (4) residents from the

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other 49 states. Copies are attached hereto as Exhibit 5.

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10.

Pursuant to Section II (G) of the Class Action Settlement Agreement, dated January 18,

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2012, the deadline for filing the Claim Form is July 5, 2012. As of May 23, 2012, Rust has

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received 55,504 claims (including a total of 259,362 jars claimed) from potential Settlement

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Class Members from California and 197,909 claims (including a total of 912,693 jars claimed)

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from potential Settlement Class Members from the other 49 states.

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EXHIBIT 1

UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF CALIFORNIA

IN RE:

Case No. 11-CV-205 H (CAB)

FERRERO LITIGATION

NOTICE OF CLASS ACTION SETTLEMENT
IF YOU HAVE PURCHASED NUTELLA IN THE STATE OF CALIFORNIA ANY TIME BETWEEN
AUGUST 1, 2009 AND JANUARY 23, 2012, PLEASE READ THIS NOTICE CAREFULLY, AS IT
DESCRIBES A SETTLEMENT THAT MAY AFFECT YOUR RIGHTS.
A federal court authorized this notice. This is not a solicitation from a lawyer.
What is this Lawsuit About?
Plaintiffs in the above consolidated action have brought class action lawsuits on behalf of themselves and
others who have purchased Nutella at any time from August 1, 2009 to January 23, 2012, alleging that
Defendant Ferrero U.S.A., Inc. (“Ferrero”) made representations through its marketing and advertising of
Nutella® brand hazelnut spread (“Nutella”), improperly suggesting that Nutella is healthier than it actually is.
Ferrero has denied the allegations and continues to stand by its products and advertising.
On January 18, 2012, the parties agreed to a settlement (the “Settlement”) to resolve this lawsuit. The terms
of the Settlement are contained in a Settlement Agreement, which is available for review at
www.NutellaClassActionSettlement.com (the “Settlement Website”).
What are the Terms of the Settlement?
By this Settlement, the parties have agreed to create a settlement fund of $550,000 (the “Cash Settlement
Amount”), to be paid by Ferrero, for the benefit of Class Members who do not opt out and who timely
complete a valid Claim Form and certify the number of jars of Nutella they purchased in the State of California.
The parties further have agreed that for each Class Member submitting a Claim Form that is accepted, the
Claims Administrator will pay to that Class Member $4.00 for each jar of Nutella purchased in the State of
California any time from August 1, 2009 to January 23, 2012, up to a maximum total of $20.00 for each Class
Member, family member of a Class Member, or any person who resides in the same household as such Class
Member. In the event that claims exceed the amount of the fund, each claim will be reduced on a pro rata
basis. In the event claims do not exceed the fund, the remaining funds will be donated to a court-approved
organization or paid out as a supplemental distribution to claimants with court approval.
Additionally, Ferrero agreed to modify its labeling of Nutella in a way that will make certain nutritional
information for the product more prominent, modify certain marketing statements regarding Nutella, create
new television advertisements for Nutella, and modify the website for Nutella (www.nutellausa.com).
The parties have further agreed that the costs to administer this Settlement, reasonable attorneys’ fees and
costs to Class Counsel related to obtaining the settlement fund, and an Incentive Award to each of the two
named Plaintiffs will be paid from the Cash Settlement Amount.

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Class Counsel may request attorneys’ fees from the Cash Settlement Amount and may also request a separate
award of attorneys’ fees, to be paid by Ferrero exclusive of the Cash Settlement Amount, of no more than
$900,000 for the Injunctive Relief obtained by way of this Settlement. The final amount of attorneys’ fees and
costs and Plaintiffs’ Incentive Award will be determined by the Court. All Class Members who do not request
exclusion from this Settlement will forever release all claims related to the allegations in In re Ferrero
Litigation against Ferrero from August 1, 2009 to January 23, 2012, inclusive (the “Class Period”).
Who is Included in the Settlement?
“Class Members” means all persons who purchased one or more of Defendant’s Nutella brand hazelnut
spread products (“Nutella”) in the State of California, at any time from August 1, 2009 through January 23,
2012, (the “Class Period”), other than for resale or distribution. Excluded from the Class Members are:
Ferrero; Defense Counsel; any judge presiding over any of the actions that together comprise the Action or
Related Actions; and any immediate family member of any such person(s).
How Can a Class Member Get a Payment Under the Terms of the Settlement?
To get a payment under the Settlement, a Class Member must make a claim to the Claims Administrator in
either of the following ways: 1) complete and mail the Claim Form available in hard copy from Class Counsel
(whose contact information is provided below) or available to be printed from the Settlement Website; or 2)
complete and electronically submit a Claim Form to the Claims Administrator directly through the Settlement
Website. Please complete only one Claim Form per household. TO BE VALID, ALL CLAIMS MUST BE
POSTMARKED OR SUBMITTED NO LATER THAN JULY 5, 2012.
Can I Exclude Myself from the Settlement?
Yes. If you are a Class Member, you may request exclusion by sending a letter requesting to be “excluded”
from this Settlement to the Claims Administrator. If you exclude yourself, your claims against Ferrero will not
be released, and you will not be eligible for any payment under the Settlement. TO BE VALID, ALL EXCLUSION
REQUESTS MUST BE POSTMARKED NO LATER THAN JUNE 8, 2012.
Can I Object to the Settlement?
Yes. If you are a Class Member and do not request exclusion, you or your attorney on your behalf may object
to the Settlement. Such objection must be in writing and must provide evidence that you are a Class Member.
The procedures for submitting a written objection are identified below. A written and signed objection (and
any support for it) must be filed with the Court and served on all of the following attorneys with a postmark
no later than June 8, 2012:
For the Settlement Class:
Ronald A. Marron
LAW OFFICES OF RONALD A. MARRON, APLC
3636 4th Avenue, Suite 202
San Diego, CA 92103
Telephone: [phone]
Gregory S. Weston
Jack Fitzgerald
THE WESTON FIRM
1405 Morena Blvd., Suite 201
San Diego, CA 92110
Telephone: [phone]

For Ferrero:
Keith E. Eggleton
Colleen Bal
Dale R. Bish
WILSON SONSINI GOODRICH & ROSATI PC
650 Page Mill Road
Palo Alto, CA 94304-1050
Telephone: [phone]
For the Court:
Clerk of Court
U.S. District Court for the Southern District of California
880 Front Street, Suite 4290
San Diego, CA 92101-8900
Telephone: [phone]
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Any objection regarding or related to the Settlement Agreement shall contain a caption or title that identifies
it as “Objection to Class Settlement in In re Ferrero Litigation, Case No. 11-CV-0205 H (CAB)” and shall also
contain information sufficient to identify the objecting Class Member, as well as a clear and concise statement
of the Class Member’s objection, the facts supporting the objection, and the legal grounds on which the
objection is based. If an objecting party chooses to appear at the hearing, then a notice of intention to
appear, either in person or through an attorney, must be filed with the Court and list the name, address and
telephone number of the attorney, if any, who will appear.
What if I do Nothing?
IF YOU DO NOTHING, YOU WILL NOT RECEIVE ANY PAYMENT. IF THE COURT APPROVES THE SETTLEMENT,
YOU WILL NO LONGER HAVE THE ABILITY TO SUE WITH RESPECT TO YOUR PURCHASE OF NUTELLA DURING
THE CLASS PERIOD, AND YOUR CLAIMS DURING THE CLASS PERIOD WILL BE RELEASED AND DISMISSED.
Who Represents the Class Members?
The Law Offices of Ronald A. Marron and The Weston Firm (collectively “Class Counsel”) represent Plaintiffs
and have been certified by the Court as counsel for the Class Members. Class Members have the right to hire
their own lawyers, at their own expense, although there is no obligation to do so, and Class Counsel will
represent all Class Members in this lawsuit who do not object or retain their own lawyer.
How will Class Counsel be Paid?
In addition to payments made to the Class Members, Ferrero has agreed that Class Counsel will seek an award
of attorneys’ fees and costs, to be paid to Class Counsel from the Cash Settlement Amount, subject to
approval by the Court. Ferrero has also agreed to pay attorneys’ fees and costs to Class Counsel not to exceed
$900,000 for the Injunctive Relief obtained by way of this Settlement, subject to approval by the Court.
When will the Court Hold a Hearing to Consider the Settlement?
The Honorable Marilyn L. Huff, a District Judge in the United States District Court for the Southern District of
California (the “Court”), will hold a hearing (the “Fairness Hearing”) at the federal courthouse located at 880
Front Street, San Diego, CA 92101 on July 9, 2012 at 10:30 a.m. in Courtroom 13 to decide whether to approve
the Settlement, and to determine the amount of attorneys’ fees and costs and Plaintiffs’ incentive awards.
You or your lawyer may appear at the Fairness Hearing but do not have to do so.
How Can I Obtain More Information?
Class Members can ask questions, complete a Claim Form and review documents concerning this case at
www.NutellaClassActionSettlement.com, by calling the Claims Administrator toll-free at 1-877-497-5858, or by
writing the “Claims Administrator” at Nutella Consumer Class Action Settlement, c/o Rust Consulting, Inc., P.O.
Box 8030, Faribault, MN 55021-9430.
PLEASE DO NOT CONTACT THE COURT OR CLERK’S OFFICE REGARDING THIS NOTICE.

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Nutella Consumer Class Action Settlement
c/o Rust Consulting, Inc.
P.O. Box 8030
Faribault, MN 55021-9430.

IMPORTANT COURT DOCUMENTS

Must Be Postmarked

No Later Than
July 5, 2012

For Official Use Only

UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF CALIFORNIA

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IN RE:

Case No. 11-CV-205 H (CAB)

FERRERO LITIGATION

CLAIM FORM INSTRUCTIONS
In order for you to qualify to receive payments related to In re Ferrero Litigation as described in the Notice of this
Settlement (the “Class Notice”), you must file a Claim Form in the attached form either in paper or electronically on the
Settlement Website and may need to provide certain requested documentation to substantiate your claim.
REQUIREMENTS FOR FILING A CLAIM FORM
Your claim will be considered only upon compliance with all of the following conditions:
1.

You must accurately complete all required portions of the attached Claim Form.

2. You must sign this Claim Form, which includes the Certification. If you file a Claim Form electronically, your
electronic signature and submission of the form shall have the same force and effect as if you signed the form in hard
copy.
3. By signing and submitting the Claim Form, you are certifying that you purchased Nutella® brand hazelnut spread
(“Nutella”) in the State of California, at any point in time from August 1, 2009 to January 23, 2012, inclusive.
4.

You have two options to complete a Claim Form:

(1) you may MAIL the completed and signed Claim Form and Certification by First-Class U.S. Mail, postage prepaid,
postmarked no later than JULY 5, 2012, to:
Nutella Consumer Class Action Settlement
c/o Rust Consulting, Inc.
P.O. Box 8030
Faribault, MN 55021-9430
Or (2) you may complete and submit the Claim Form and Certification using the Claims Administrator’s Settlement
Website, located at www.NutellaClassActionSettlement.com. Upon completion of the on-line Claim Form, you will
receive an acknowledgement that your claim has been submitted. If you file a Claim Form electronically, your electronic
signature and submission of the form shall conform to the requirements of the federal Electronic Signatures Act, 15
U.S.C. §7001, et seq. and have the same force and effect as if you signed the form in hard copy.
5. Your failure to complete and submit the Claim Form postmarked or filed on-line by July 5, 2012, will preclude you
from receiving any payments in this Settlement. So that you will have a record of the date of your mailing of the Claim
Form and its receipt by the Claims Administrator, you are advised to use (but are not required to use) Certified Mail,
Return Receipt Requested.
Submission of this Claim Form does not assure that you will share in the payments related to In re Ferrero Litigation. If
the Claims Administrator disputes a material fact concerning your Claim, you will have the right to present information in
a dispute resolution process. For more information on this process, see Paragraph 31 of the Settlement Agreement,
which is available at www.NutellaClassActionSettlement.com.

*3254*

*CFC*

*RUST*

In re Ferrero Litigation
CLAIM FORM
Please print or type
I,
LAST NAME (Claimant)*

, state as follows:
FIRST NAME (Claimant)*

Current Address*
Current City*

State*

Zip Code*
―

Telephone Number (Day)(optional)
―
―

Telephone Number (Night)(optional)
―
―

E-mail Address*

IDENTITY OF CLAIMANT (Check appropriate box)
 Individual
 Legal Representative (attach information showing authority to submit claim)
 Other (specify, describe on separate sheet)
Please state the number of jars of Nutella that you purchased
in California from August 1, 2009 to January 23, 2012, inclusive.
NOTE: YOU CAN CLAIM UP TO A MAXIMUM OF FIVE (5) JARS
CERTIFICATION*
I have read and am familiar with the contents of the Instructions accompanying this Claim Form and I certify that the
information I have set forth in the foregoing Claim Form and in documents attached by me are true, correct and complete to
the best of my knowledge.
I certify that I purchased the number of jars of Nutella in the State of California indicated on the Claim Form above during the
period August 1, 2009 to January 23, 2012, inclusive.
I am not an officer, director, agent, servant or employee of Ferrero U.S.A., Inc. or any related entity thereof; a judge in this
lawsuit; or an immediate family member of such persons; and I have not requested exclusion from the Settlement.
I certify that the foregoing information supplied by the undersigned is true and correct to the best of my knowledge and that
this Claim Form was executed this ____ day of _________________________, 2012.

Signature

Type/Print Name

Date

If the Claimant is other than an individual, or is not the person completing this form, the following must also be provided:

Name of person signing

Capacity of person signing
(Executor, President, Trustee, etc.)

Date

REMINDER CHECKLIST:
1. Please sign the above Claim Form.
2. Keep a copy of your Claim Form and supporting documentation for your records.
3. If you desire an acknowledgment of receipt of your Claim Form, please complete the on-line Claim Form or mail this
Claim Form via Certified Mail, Return Receipt Requested.
4. If you move or your name changes, please send your new address, new name or contact information to the Claims
Administrator via the Settlement Website, or First-Class U.S. Mail, each listed in the Notice.
*Fields or Sections are Required to be Completed.

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ACCURATE CLAIMS PROCESSING TAKES A SIGNIFICANT AMOUNT OF TIME. THANK YOU FOR YOUR PATIENCE.

EXHIBIT 2

EXHIBIT 3

EXHIBIT 4

Nutella Consumer Class Action Settlements
CLASS ACTION LAWSUIT

Last Updated: 3/12/2012

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Welcome to the Nutella Consumer Class Action
Settlements Website
This website has been established pursuant to two Settlements that were entered into between consumers and
Ferrero U.S.A., Inc., the manufacturer of Nutella.

IF YOU PURCHASED NUTELLA IN CALIFORNIA BETWEEN AUGUST 1, 2009 AND JANUARY 23, 2012, OR
IN ANY OTHER STATE BETWEEN JANUARY 1, 2008 AND FEBRUARY 3, 2012, YOU MAY BE ELIGIBLE TO
RECEIVE A PAYMENT FROM A PROPOSED CLASS ACTION SETTLEMENT.

Please read the materials on this website, including the class action notices carefully as they describe Class Action
Settlements that may affect your rights.

IMPORTANT DATES & DEADLINES:

Submit A Claim Form: Postmarked or submitted on-line no later than July 5, 2012

Request Exclusion:

Postmarked no later than June 8, 2012

Make Objections:

Filed/Delivered no later than June 8, 2012

Fairness Hearings:

New Jersey Court (for the Nationwide Class)
July 9, 2012 at 10:00 a.m.
California Court (for the California Class)
July 9, 2012 at 10:30 a.m.

Case Name and Number

Court and Address

Purchase Location

Time Period

In re Ferrero Litigation,

U.S. District Court for the

California

August 1, 2009

No. 11-CV-205 H

Southern District of California

through

940 Front Street

January 23, 2012

San Diego, CA 92101-8900
In re Nutella Marketing and

U.S. District Court for the

Any state other

January 1, 2008

Sales Practices Litigation,

District of New Jersey

than California

through

No. 3:11-cv-01086

402 East State Street

February 3, 2012

Room 2020
Trenton, NJ 08608

Settlements have been reached in two class action lawsuits against Ferrero U.S.A., Inc. (“Ferrero”) regarding its
labeling, advertising and marketing of the Nutella brand hazelnut spread. The Settlements provide Class Members
who do not opt out the opportunity to receive monetary relief as well as prospective relief in the form of corrective
labeling, advertising and marketing. The lawsuit claims that Ferrero made statements suggesting that Nutella is
healthier than it actually is.

Who is included in the Settlements?
Included in the Settlements are:
•

Anyone who purchased Nutella in any state other than California, between January 1, 2008 and
February 3, 2012 (“Nationwide Class”), and

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Anyone who purchased Nutella in California between August 1, 2009 and January 23, 2012
("California Class”).

IF YOU PURCHASED NUTELLA FOR RESALE OR DISTRIBUTION, YOU ARE NOT INCLUDED IN THE CLASSES.

What Do the Settlements Provide?
The Nationwide Class provides for a settlement fund of $2,500,000 and the California Class provides for a settlement
fund of $550,000 for a total of $3,050,000. Class Members can receive up to $4 per jar of Nutella that they purchased
during the time periods listed above. Class Members who purchased multiple jars of Nutella during the time periods
can submit a claim for up to five jars for a maximum award of $20 per household. If the value of the claims of the
Nationwide Class exceeds $2,500,000, or the value of the claims of the California Class exceeds $550,000, then
payments will be reduced proportionally.

In addition, Ferrero also has agreed to prospective relief by agreeing to modify the Nutella label, modify certain
marketing statements about Nutella, create new television ads, and change the Nutella website. More details can be
found in the Settlement Agreements at the "Court Documents" link on the left of this page.

How to Get a Payment?
You MUST submit a Claim Form either electronically or via U.S. Mail to get a payment. The deadline to submit a
Claim Form is July 5, 2012. You can submit a Claim Form online by clicking on the “File a Claim” link on the left or
you can submit a Claim Form by U.S. Mail. To submit a Claim Form by U.S. Mail click on the “Download a Claim
Form" link on the left and follow the instructions on the form.

What are Your Options?
Make a Claim
If you want to participate and be entitled to receive a payment from one of the Settlements, you MUST submit
a Claim Form, as discussed above.

Do Nothing
If you do nothing, your rights will be affected. You will not receive any payment from either Settlement, you will not be
able to sue Ferrero for any claim relating to these lawsuits, and your claims during the class period will be released
and dismissed.

Request Exclusion
If you want to exclude yourself from either of the Settlements, you must send your Request for Exclusion from either
the Nationwide Class or the California Class to the Claims Administrator postmarked no later than June 8, 2012. If
you exclude yourself, your claims against Ferrero will not be released and you will not be eligible for any payment
under the Settlements.

Object
If you do not exclude yourself from the Nationwide Class or the California Class, you may object to the Settlement.
Your objection must be filed with the Court and served on all attorneys for your Class no later than June 8, 2012.
Refer to the "Notice" link on the left for additional details.

A Fairness Hearing will be held for the Nationwide Class in the United States District Court for the District of New
Jersey and a Fairness Hearing will be held for the California Class in the United States District Court for the Southern
District of California. Both Fairness Hearings will take place on July 9, 2012 and the Courts will consider whether to
approve each respective Settlement, requests for attorneys’ fees and expenses and Plaintiffs' incentive award. You
may appear at the hearing, but you don’t have to. If you choose to attend the hearing, you may do so in person or
you may hire your own attorney, at your own expense, to appear or speak for you at the hearing. If you do choose to
appear at the Fairness Hearing, you must file a Notice of Intention to Appear with the Court.

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EXHIBIT 5