Hohenberg v. Ferrero USA, Inc

Filing 154

ORDER denying 145 Motion to Vacate Final Approval of Class Settlement. Signed by Judge Marilyn L. Huff on 12/03/2012. (All non-registered users served via U.S. Mail Service)(ag) (jrl).

1
2
3
4
5
6
7

UNITED STATES DISTRICT COURT

8

SOUTHERN DISTRICT OF CALIFORNIA

9

CASE NO. 11-CV-205-H (KSC)

10
11

IN RE FERRERO LITIGATION

ORDER DENYING MOTION
TO VACATE FINAL
APPROVAL OF CLASS
SETTLEMENT

12
13
14
15

On November 5, 2012, Objectors Courtney Drey and Andrea Pridham filed a motion

16

to vacate the Court’s order approving the class settlement pursuant to Federal Rule of Civil

17

Procedure 60(b). (Doc. No. 145-1.) Plaintiffs Athena Hohenberg and Laura Rude-Barbato

18

and Defendant Ferrero USA, Inc. filed a joint opposition on November 19, 2012. (Doc. No.

19

151.) Drey and Pridham filed their reply on November 28, 2012.1 (Doc. No. 152.) For the

20

reasons set forth below, the Court denies Objectors’ motion.
Background

21
22

This is a consolidated consumer class action lawsuit brought on behalf of people who

23

have purchased Ferrero’s Nutella® spread after relying on allegedly deceptive and misleading

24

labeling and advertisements. (Doc. No. 14, Cons. Compl.) After two settlement conferences

25

before the magistrate judge, as well as a private mediation with a retired district judge, the

26

parties reached an agreement to settle the claims. (Doc. No. 127 at p. 6.) On January 23, 2012,

27
1

28

Per Civil Local Rule 7.1.e.3, Objectors were required to file their reply on or before
November 26, 2012. The Court exercises its discretion pursuant to Civil Local Rule 1.1.d and accepts
Objectors’ untimely filing. However, the Court instructs Objectors and their counsel to strictly adhere
to this Court’s local rules if they should make any subsequent filings in this case.
-1-

1

the Court granted preliminary approval to the proposed settlement. (Doc. No. 114.) On June

2

8, 2012, class members Courtney Drey and Andrea Pridham filed objections to the proposed

3

settlement, including an objection as to the adequacy of the Weston Firm to represent the class.

4

(Doc. No. 123.) On July 9, 2012, the Court held a fairness hearing to decide whether to grant

5

final approval to the proposed settlement. (Doc. No. 128.) Counsel for Objectors Drey and

6

Pridham appeared at the hearing. (Doc. No. 127.) After considering all objections, the Court

7

granted final approval of the proposed settlement. (Doc. No. 127.) Objectors Drey and

8

Pridham filed a notice of appeal on August 7, 2012. (Doc. No. 130.)
Discussion

9
10

I.

Jurisdiction

11

“Once an appeal is filed, the district court no longer has jurisdiction to consider motions

12

to vacate judgment.” Davis v. Yageo Corp., 481 F.3d 661, 685 (9th Cir. 2007). “However,

13

a district court may entertain and decide a Rule 60(b) motion after notice of appeal is filed if

14

the movant follows a certain procedure, which is to ‘ask the district court whether it wishes to

15

entertain the motion, or to grant it,’” and then file a motion in the appellate court to remand the

16

case. Id. (quoting Gould v. Mut. Life Ins. Co. of N.Y., 790 F.2d 769, 772 (9th Cir. 1986)).

17

This procedure is often referred to as seeking an indicative ruling. Fed. R. Civ. P. 62.1

18

advisory committee’s note. Upon a request for an indicative ruling, the district court may “(1)

19

defer considering the motion; (2) deny the motion; or (3) state either that it would grant the

20

motion if the court of appeals remands for that purpose or that the motion raises a substantial

21

issue.” Fed. R. Civ. P. 62.1.

22

As Objectors Drey and Pridham filed their Rule 60(b) motion after they filed a notice

23

of appeal, the Court lacks jurisdiction to grant the motion. Davis, 481 F.3d at 685. Therefore,

24

the Court’s jurisdiction is limited to that provided in Rule 62.1.

25

II.

Rule 60(b) Motion to Vacate

26

The decision whether to vacate a prior judgment is committed to the sound discretion

27

of the district court. Price v. Seydel, 961 F.2d 1470, 1473 (9th Cir. 1992). Rule 60(b) provides

28

that a court “may relieve a party or its legal representative from a final judgment, order, or
-2-

1

proceeding”2 on the following grounds:

2

(1)

mistake, inadvertence, surprise, or excusable neglect;

3

(2)

newly discovered evidence that, with reasonable diligence, could not have been
discovered in time to move for a new trial under Rule 59(b);

(3)

fraud (whether previously called intrinsic or extrinsic), misrepresentation, or
misconduct by an opposing party;

6

(4)

the judgment is void;

7

(5)

the judgment has been satisfied, released, or discharged; it is based on an earlier
judgment that has been reversed or vacated; or applying it prospectively is no
longer equitable; or

(6)

any other reason that justifies relief.

4
5

8
9
10

Fed. R. Civ. P. 60(b).

11

Objectors argue that newly-discovered evidence seriously calls into question the

12

adequacy of the Weston Firm to represent the class. (Doc. No. 145-1.) The newly-discovered

13

evidence includes a September 14, 2010 order in Red v. Unilever PLC, No. 12-387, 2010 WL

14

3629689 (N.D. Cal. Sep. 14, 2010), an August 24, 2010 order in Levitt v. Yelp!, No. 1-

15

1321/10-2351 (N.D. Cal. Aug. 24, 2010), and a September 30, 2010 order in The Weston Firm,

16

P.C. v. Reese Richman LLP, No. 10-1694 (S.D. Cal. Sep. 30, 2010). Id. As to Unilever,

17

Objectors highlight allegations made by the Beck & Lee firm that the Weston Firm, in a

18

different case, had offered a “kickback” to an individual in return for serving as a named

19

plaintiff, had promised one of its paralegals a “finder’s fee” in exchange for “signing up” a

20

named plaintiff, and had compensated its non-lawyer employees on a percentage basis from

21

settlement proceeds. (Doc. No. 145-1, Ex. A at p. 2.) Objectors also point out that the Court

22

expressed concerns regarding the Weston Firm’s ability to hold fees in trust. (Id. at p. 5)

23

(noting the Weston Firm’s fee dispute with the Beck & Lee firm and appointing a special

24

master). As to Yelp!, Objectors point out that the court noted the inexperience of the Weston

25

Firm in obtaining class certification and subsequent litigation and appointed the Ongaro firm

26

as class counsel. (Doc. No. 145-1, Ex. B at p. 2.) As to Weston Firm, Objectors highlight the

27
2

28

Objectors request leave to intervene pursuant to Rule 24 in the event that as non-parties they
lack standing to bring their 60(b) motion. (Doc. No. 145-1 at p. 8.) The parties do not oppose. (Doc.
No. 151 at p. 5, n.3.) Therefore, the Court grants Objectors request to intervene for the limited
purpose of maintaining their 60(b) motion. Fed. R. Civ. P. 24(b).
-3-

1

fact that the Court expressed concerns that the Weston Firm “circumvent[ed] the rulings of

2

other district courts” in requesting a temporary restraining order enjoining the Beck & Lee firm

3

from communicating with clients of the Weston Firm. (Doc. No. 145-1, Ex. C at p. 3.)

4

Objectors argue that this newly-discovered evidence, coupled with the issues raised in their

5

prior objections, raises a substantial question that the Weston Firm engaged in similar

6

misconduct in this case. (Doc. No. 145-1 at p. 7.)

7

After considering Objectors’ arguments and the issues discussed in the cases cited, the

8

Court concludes that Objectors have failed to raise a substantial question as to the adequacy

9

of the Weston Firm in this case. The alleged misconduct of the Weston Firm in all three cases

10

cited by Objectors stemmed from the circumstances surrounding Weston Firm’s various

11

disputes with the Beck & Lee firm. (See Doc. No. 145-1, Exs. A-C.) This litigation appears

12

to be outside the scope of that dispute, and there is no evidence to suggest that the Weston

13

Firm engaged in any misconduct in this case. The issues raised in the “newly-discovered

14

evidence” are insufficient to raise a question of impropriety here.

15

In addition, the Court previously considered and overruled objections to the adequacy

16

of the Weston Firm. (Doc. No. 127.) The argument that the Weston Firm is not experienced

17

with class certification and subsequent litigation is mitigated by the fact that the parties have

18

reached a settlement that the Court determined “provid[es] an appropriate remedy to class

19

members” taking “into account the strength of Defendant’s defenses and obstacles to class-

20

wide recovery.” (Doc. No. 127 at p. 7.) Thus, the Weston Firm has demonstrated its ability

21

to obtain appropriate relief, allegations of inexperience notwithstanding.

22
23
24
25
26
27
28

Conclusion
For the foregoing reasons, the Court denies Objectors’ motion to vacate its prior
judgment granting final approval to class settlement.
IT IS SO ORDERED.
DATED: December 3, 2012
_______________________________
MARILYN L. HUFF, District Judge
UNITED STATES DISTRICT COURT
-4-