Hohenberg v. Ferrero USA, Inc

Filing 33

RESPONSE in Opposition re 19 MOTION for Change Venue filed by Athena Hohenberg, Laura Rude-Barbato. (Attachments: # 1 Declaration of Plaintiff Athena Hohenberg in Opposition to Ferrero's Motion for Transfer of Venue, # 2 Declaration of Plaintiff Laura Rude-Barbato in Opposition to Ferrero's Motion for Transfer of Venue, # 3 Declaration of Jack Fitzgerald in Opposition to Ferrero's Motion for Transfer of Venue, # 4 Unopposed Ex Parte Motion to File Documents Under Seal, # 5 Proof of Service)(Fitzgerald, John) (ag). Modified on 5/4/2011 to create motion (ag).

REDACTED VERISON – FULL VERSION FILED UNDER SEAL
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LAW OFFICES OF RONALD A. MARRON, APLC
RONALD A. MARRON (175650)
3636 4th Avenue, Suite 202
San Diego, California 92103
Telephone: [phone]
Facsimile: [phone]
[e-mail]
THE WESTON FIRM
GREGORY S. WESTON (239944)
JACK FITZGERALD (257370)
888 Turquoise Street
San Diego, CA 92109
Telephone: [phone]
Facsimile: [phone]
[e-mail]
[e-mail]
INTERIM CLASS COUNSEL

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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IN RE FERRERO LITIGATION
______________________________________

CASE NO. 3:11-CV-00205-H-CAB

ATHENA HOHENBERG & LAURA RUDEBARBATO, individually and on behalf of all
others similarly situated,

DECLARATION OF JACK
FITZGERALD IN OPPOSITION TO
FERRERO’S MOTION FOR
TRANSFER OF VENUE

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Judge: The Honorable Marilyn L. Huff
Plaintiffs,

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Date: May 16, 2011
Time: 10:30 a.m.
Location: Courtroom 13

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v.

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FERRERO U.S.A, INC., a foreign corporation,

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Defendant.

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DECLARATION OF JACK FITZGERALD IN OPPOSITION TO FERRERO’S MOTION FOR TRANSFER OF VENUE

REDACTED VERISON – FULL VERSION FILED UNDER SEAL
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I, Jack Fitzgerald, declare:

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1.

I am a member in good standing of the State Bars of California and New York, and of

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the United States District Courts for the Northern, Central and Southern Districts of California and the

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Southern and Eastern Districts of New York, and of the United States Court of Appeals for the Ninth

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Circuit. I make this Declaration in opposition to Ferrero’s Motion to Transfer Venue.

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Ferrero’s Substantial Contacts with California

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2.

Attached hereto as Exhibit A is a true and correct copy of the “Business Entity Detail”

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for FERRERO U.S.A., INC., shown on the California Secretary of State’s website, accessed April 28,

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2011.

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3.

Attached hereto as Exhibit B are excerpts of the April 14, 2011 Deposition Transcript

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of Bernard Kreilmann, Ferrero’s President and CEO (the “Kreilmann Deposition Transcript.”).

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Portions of Exhibit B are being filed under seal pursuant to the Protective Order filed in this action

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(Dkt. No. 32).

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4.

Attached hereto as Exhibit C is Plaintiffs’ Exhibit 5 for identification (“PX-5,” marked

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at the Kreilmann deposition). PX-5 is Attachment A to Ferrero’s Interrogatory Responses, and shows

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Ferrero’s net sales of Nutella, by quarter, from 2007 through February 2011. Ferrero’s net sales of

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Nutella during this period1 were

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being filed under seal pursuant to the Protective Order filed in this action.

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5.

. Ferrero designated PX-5 “Confidential,” and so it is

Attached hereto as Exhibit D is Plaintiff’s Exhibit 6 for identification (“PX-6,” marked

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at the Kreilmann deposition.) PX-6 is Attachment B to Ferrero’s Interrogatory Responses, and shows

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Ferrero’s Unit and Dollar sales in the United States and California from 2007 to 2010 (p. 1) and the

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same information for the 12 weeks ending March 20, 2011 (p. 2). Ferrero designated PX-5

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“Confidential,” and so it is being filed under seal pursuant to the Protective Order filed in this action.

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6.

Attached hereto as Exhibit E is a printout of a native Microsoft Excel spreadsheet

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produced by Ferrero in native format on a CD produced on April 19, 2011, marked FERRERO

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001234-001270, and further marked “CONFIDENTIAL” (and therefore, it is being filed under seal).

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1

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Plaintiffs, however, allege a class period beginning January 1, 2000. (See MCC ¶ 119.)
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DECLARATION OF JACK FITZGERALD IN OPPOSITION TO FERRERO’S MOTION FOR TRANSFER OF VENUE

REDACTED VERISON – FULL VERSION FILED UNDER SEAL
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This document shows sales data for Nutella in “mass” stores, Wal-Mart and Target, and “club” stores

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Costco and Sams. For the printout, Plaintiffs inserted cover sheets to note each different Excel sheet,

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and highlighted the rows for California and New Jersey where appropriate. For the Court’s purposes,

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the first sheet shows a summary of the data, while the remaining 5 sheets all provide underlying data.

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7.

Attached hereto as Exhibit F is Plaintiffs’ Exhibit 14 for identification (“PX-14,”

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marked at the Kreilmann deposition). PX-14 is an excerpt of the first ten pages of FERRERO000134-

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001129, which represents every point Ferrero shipped Nutella to from January, 2007 through March

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2011, i.e., mostly its retail customers (see Kreilmann Dep. Tr. 112:24-114:6). Ferrero designated PX-

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14 “Confidential,” and so it is being filed under seal pursuant to the Protective Order filed in this

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action. Ferrero subsequently produced FERRERO000134-001129 in native Microsoft Excel format,

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on a CD. Since the file is nearly 1,000 pages long, Plaintiffs do not file it.

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8.

Rather, Plaintiffs represent that, using the native file, they calculated the total shipping

entries, and the number of entries for shipping points in California and New Jersey:

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Total Shipping Entries:

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CA Entries:

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NJ Entries:

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(
(

of Total Shipping Entries)
of Total Shipping Entries)

The Expense & Inconvenience of Hiring Local Counsel in New Jersey
9.

None of Plaintiffs’ attorneys are admitted in New Jersey. Therefore, Pursuant to N.J.

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Civ. L.R. 101.1(c)(4) and N.J. Ct. R. 1:21-2(2)(c)(4), if this action is transferred to New Jersey, to

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continue to litigate this action, Plaintiffs will incur substantial expense.

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10.

New Jersey Civil Local Rule 101.1(c)(4) provides, “[o]nly an attorney at law of this

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Court may file papers, enter appearances for parties, sign stipulations, or sign and receive payments on

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judgments, decrees or orders.”

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11.

New Jersey also requires that any attorney admitted pro hac vice shall, “have all

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pleadings, briefs and other papers filed with the court signed by an attorney of record authorized to

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practice in this State, who shall be held responsible for them and for the conduct of the cause and of

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the admitted attorney therein.” N.J. Ct. R. 1:21-2(2)(c)(4).

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DECLARATION OF JACK FITZGERALD IN OPPOSITION TO FERRERO’S MOTION FOR TRANSFER OF VENUE

REDACTED VERISON – FULL VERSION FILED UNDER SEAL
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12.

Various articles and practice guides provide an idea of what local counseling in New

Jersey involves (and therefore, the expense Plaintiffs would incur if this action is transferred).

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13.

See, e.g., David A. Mazie and Ben-David Seligman, Contractually Narrowing the

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Duties and Liability of a Mail Drop Local Counsel, N.J. Lawyer (Feb. 2006) at 16, attached hereto2 as

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Exhibit G:
Thus, aside from being substantively responsible for the content of
pleadings, local counsel is also responsible for what the rule calls ‘the
conduct of the cause.’ Responsibility for the conduct of the cause is no
small matter. New Jersey case law traditionally has trated that phrase as
synonymous with ‘the labor of managing the cause.’ Although pro hac
vice counsel may seek a local firm to serve as a mere mail drop, court
rules require that the local firm take a greater role.

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14.

See also Donald E. Taylor et al., Navigating The New Jersey Courts With Local

Counsel (Feb. 2010), attached hereto as Exhibit H.

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See also United States District Court, District of New Jersey, Basic Elements of Civil

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Practice

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http://www.njd.uscourts.gov/camden/basicelements1a.pdf:

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in

the

Camden

Vicinage

(Oct.

2005)

(emphasis

added),

available

at

Even if an attorney has been admitted pro hac vice to participate in a case,
only an attorney at law of this Court may file papers, enter appearances for
parties, sign stipulations, and sign and receive payments on judgments,
decrees or orders. Local counsel remains responsible for the conduct of the
litigation and for the conduct of pro hac vice counsel. Local counsel must
continue to appear at all proceedings (unless excused) and must continue
to sign all briefs and pleadings even though pro hac vice counsel is
otherwise litigating the case. For example, local counsel must appear at
the Scheduling Conference and all other pretrial conferences and at
trial, unless expressly excused by the court.

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16.

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In order to file their Motion to Intervene and Motion to Dismiss Glover, Plaintiffs

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retained Karen Confoy and Erica Helms of Sterns & Weinroth, P.C. Their firm biographies are

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attached hereto as Exhibit I. Ms. Confoy’s hourly rate is $335, while Ms. Helms’ is $245. These rates

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appear reasonable. See, e.g., Miller v. Adco Liberty Mfg. Corp., 2005 U.S. Dist. LEXIS 36423, at *6-7

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(D.N.J. Dec. 27, 2005) (applying “reasonable hourly rates of law firms in New Jersey” in 2005,

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2

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Only the first two pages of this article were available online.
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DECLARATION OF JACK FITZGERALD IN OPPOSITION TO FERRERO’S MOTION FOR TRANSFER OF VENUE

REDACTED VERISON – FULL VERSION FILED UNDER SEAL
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finding the rate of $350 - $375 per hour reasonable for partners and $250 reasonable for a 6th-year

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associate). If this action is transferred to New Jersey, Plaintiffs would anticipate further retaining these

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attorneys as local counsel.

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17.

According to the most recent statistics, New Jersey has a time-to-trial in civil actions of

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40.6 months. This action was filed in February. If this action were transferred to New Jersey and

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Plaintiffs were required to hire local counsel starting in June (i.e., discounting 4 months) Assuming a

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conservative estimate of only 10 hours per month, with only 2 of those hours performed by the higher

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biller, Plaintiffs would incur $2,630 per month, for a total of $96,258. If half the hours were

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performed by the higher biller, Plaintiffs would incur $2,900 per month, for a total of $106,140.

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18.

Because this estimate does not include trial, Plaintiffs’ additional expenses from

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transfer to the District of New Jersey could easily amount to well over $100,000.

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Plaintiffs’ Willingness to Defray Inconvenience to Ferrero & Third Parties

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19.

In order to defray the expense and inconvenience to Ferrero’s employee witnesses, and

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any third parties located outside this Court’s subpoena power, Plaintiffs’ counsel will travel to

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whatever location is most convenient for those witnesses in order to depose them, and will only

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require the attendance at trial of witnesses deemed necessary to proving Plaintiffs’ case.

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Potential Third-Party Witnesses

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20.

Attached hereto as Exhibit J is a table showing all potential third-party witnesses of

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whom Plaintiffs are currently aware, their potential testimony and its relevance, and the source or

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basis for that knowledge.

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//

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//

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//

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//

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//

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//

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//

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DECLARATION OF JACK FITZGERALD IN OPPOSITION TO FERRERO’S MOTION FOR TRANSFER OF VENUE

REDACTED VERISON – FULL VERSION FILED UNDER SEAL
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Relative Court Congestion and Time to Trial
21.

Attached hereto as Exhibit K are true and correct copies of the most recent Judicial

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Caseload Profile data sheets maintained by the United States Judiciary, for both this District and the

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District of New Jersey. These data sheets show caseload data for the 12-month period ending

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September 30, 2010, and are available at http://www.uscourts.gov.

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I declare under penalty of perjury of the United States that the foregoing is true and correct to
the best of my knowledge.

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Executed in Santa Clara, California, this 2nd day of May, 2011.

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/s/ Jack Fitzgerald
Jack Fitzgerald

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Dated: May 2, 2011

Respectfully submitted,
By: /s/ Jack Fitzgerald
Jack Fitzgerald
Gregory S. Weston
THE WESTON FIRM
Ronald A. Marron
LAW OFFICES OF RONALD A. MARRON, APLC
INTERIM CLASS COUNSEL

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DECLARATION OF JACK FITZGERALD IN OPPOSITION TO FERRERO’S MOTION FOR TRANSFER OF VENUE

Exhibit A

Secretary of State

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Data is updated weekly and is current as of Friday, April 22, 2011. It is not a complete or certified
record of the entity.
Entity Name:

FERRERO U.S.A., INC.

Main Page
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Entity Number:

C0976452

Date Filed:

02/28/1980

Status:

ACTIVE

Jurisdiction:

DELAWARE

Entity Address:

600 COTTONTAIL LN

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Entity City, State,
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Agent for Service CORPORATION SERVICE COMPANY WHICH WILL DO BUSINESS IN
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2730 GATEWAY OAKS DR STE 100

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Exhibit B

Page 1
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CONFIDENTIAL - KREILMANN

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
CASE NO. 3:11-CV-00205-H-CAB

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IN RE:
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NUTELLA DECEPTIVE SALES
PRACTICES & MARKETING
LITIGATION
------------------------

)
)
)
)
)
)

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DEPOSITION OF BERNARD F. KREILMANN, C.F.O.

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BRIDGEWATER, NEW JERSEY

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APRIL 14, 2011

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**CONTAINS HIGHLY CONFIDENTIAL PORTIONS**

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REPORTED BY:
SILVIA P. WAGE, CCR, CRR, RPR
JOB NO. 37839
TSG Reporting - Worldwide

877-702-9580

Page 2
A P P E A R A N C E S:

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9:19 a.m.
April 14, 2011

THE WESTON FIRM
Attorneys for Plaintiffs
2811 Sykes Court
Santa Clara, California 95051
BY: JACK FITZGERALD, ESQ

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Deposition of BERNARD F. KREILMANN, CHIEF
FINANCIAL OFFICER, held at the offices of NORRIS,
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McLAUGHLIN, 721 Route 202-206, First Floor Board
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Room, Bridgewater, New Jersey, pursuant to
agreement before SILVIA P. WAGE, a Certified
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Shorthand Reporter, Certified Realtime Reporter,
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Registered Professional Reporter, and Notary
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Public for the State of New Jersey.
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.
BY: GREGORY WESTON, ESQ.
WILSON SONSINI GOODRICH & ROSATI
Attorneys for Nutella and Ferrero
650 Page Mill Road
Palo Alto, California 94304
BY: DALE BISH, ESQ.

A L S O P R E S E N T:
BETH M. KOTRAN, ESQ.
FERRERO

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CONFIDENTIAL - KREILMANN
B E R N A R D F. K R E I L M A N N, C. F. O.,
(Ferrero Business Address) 600 Cottontail
Lane, Somerset, New Jersey 08873, called as
a witness, having been duly sworn by a
Notary Public, was examined and testified as
follows:
EXAMINATION BY
BY MR. FITZGERALD:
Q. Good morning, Mr. Kreilmann.
A. Good morning.
Q. Am I saying that right -A. Yes.
Q. -- Kreilmann?
A. Perfect.
MR. BISH: Should we introduce
ourselves for the record.
MR. FITZGERALD: Sure, let's make
appearances.
Jack Fitzgerald and Gregory Weston of The
Weston Firm on behalf of Plaintiffs.
MR. BISH: Dale Bish, Wilson Sonsini,
for Ferrero U.S.A.
MS. KOTRAN: Beth Kotran, legal
counsel for Ferrero U.S.A. in-house.

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CONFIDENTIAL - KREILMANN
THE WITNESS: And Bernard Kreilmann,
Chief Executive Officer, for Ferrero U.S.A.
Q. Mr. Kreilmann, have you ever been
deposed before?
A. Once.
Q. When was that?
A. In 2001.
Q. So it's been a while?
A. It's been a while.
Q. Okay. Well, I'm sure you had some
discussions with your attorney about how today is
going to go and you had some experience from
doing it ten years ago. So you know that I'm
going to ask you questions today and you have to
answer under oath?
A. Yes.
Q. Okay. Is there any physical or
medical reason you can't give your best testimony
today?
A. No.
Q. Was that a no?
A. It was a no.
Q. Okay. So, actually, as another
reminder --

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CONFIDENTIAL - KREILMANN
objections to the topics?
A. I do.
Q. And that's what Plaintiff's Exhibit 2
is?
A. Yes.
Q. So the question I'd like to ask just
before we get into the substantive testimony, is
there any deposition topic which you don't
understand?
A. No, there is not.
Q. Okay.
MR. BISH: Again, to clarify it, that
he has been designated on? Because there were
two that we did not designate him on, that we
just objected.
MR. FITZGERALD: I understand.
MR. BISH: Right.
MR. FITZGERALD: Right. And...
MR. BISH: So you're talking about
the 9 or the 11?
MR. FITZGERALD: So it was 11 total,
2 you objected to?
MR. BISH: You have 11 topics and, I
believe, we designated him on 9 of the 11.

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Page 12
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CONFIDENTIAL - KREILMANN
you say that, "Ferrero U.S.A. sells product that
is manufactured by Ferrero Canada LTD." Do you
see that?
A. Yes.
Q. What is the relationship of Ferrero
Canada LTD to Ferrero U.S.A.?
A. Ferrero Canada LTD is supplier of
Ferrero U.S.A.
Q. Is there any sort of parent or
subsidiary relationship between the companies?
A. For U.S.A. is parent company Ferrero
International. So we have a contract of supply
with Ferrero Canada.
Q. Does Ferrero Canada and Ferrero
U.S.A. share a common parent?
A. I'm not sure about direct ownership
of Ferrero Canada -- direct relationship of
Ferrero Canada but, ultimately, yes.
Q. All the way -- eventually at the top?
A. Yes.
Q. I see.
Are Ferrero Canada and Ferrero U.S.A.
considered affiliates?
A. I'm not sure about the terms

CONFIDENTIAL - KREILMANN
MR. FITZGERALD: Right.
Q. So, for the ones that you are
designated on, are there any you don't
understand?
A. No.
Q. Okay, thank you.
You can put those two aside.
A. (The witness complies.)
MR. FITZGERALD: Can I have this
marked as Plaintiff's Exhibit 3, please.
(Plaintiff's Exhibit No. 3, Declaration of
Bernard F. Kreilmann in Support of Defendant's
Motion to Transfer Venue to The District of New
Jersey, was marked for identification.)
Q. Mr. Kreilmann, I'm handing you what's
been marked as Plaintiff's Exhibit 3. Would you
take a minute to review that, please.
A. (The witness complies.)
Q. Mr. Kreilmann, do you understand
Plaintiff's Exhibit 3 as a Declaration you
submitted in support of Ferrero's Motion to
Transfer Venue to the District of New Jersey?
A. Yes, I do.
Q. In Paragraph 25 of the Declaration,

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CONFIDENTIAL - KREILMANN
"affiliates."
Q. Okay. In Paragraph 5 of the
Declaration, it says that, "The Nutella sold
within the United States by Ferrero U.S.A. is
primarily manufactured in Brantford, Ontario."
Do you see that?
A. Yes.
Q. What sort of facilities are there in
Brantford, Ontario for manufacturing Nutella?
MR. BISH: Object to form.
A. Can you precise your question?
Q. Sure. I'll rephrase.
What sort of physical facilities are there
in Brantford, Ontario relating to Ferrero or to
Nutella; for example, is there a factory, is
there an office?
A. Okay.
Q. What's there?
A. Yeah, it's a production entity. So
it's a factory with a production line, temporary
warehousing and offices related to the management
of the factory exclusively.
Q. Paragraph 5 says, "Ferrero Canada is
headquartered in Toronto, Ontario." Do you see

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CONFIDENTIAL - KREILMANN
that?
A. Yes, I see that.
Q. What facilities are in Toronto?
A. To my knowledge, the entity of
Toronto is administration, marketing and sales
entity.
Q. Is the Brantford facilities, is that,
also, Ferrero Canada LTD?
A. I am not sure. I don't know the
corporate structure of Ferrero Canada LTD.
Q. If you wanted to find out, what would
you do?
A. I would ask the COO of Ferrero
Canada.
Q. And who is that?
A. Allen Cosman.
Q. Can you spell the last name for the
court reporter.
A. C-O-S-M-A-N.
Q. Thank you.
In Paragraph 5 you say That, "Nutella is
distributed in the United States using
third-party distributors at various facilities
including one that's located in Ontario,

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CONFIDENTIAL - KREILMANN
Q. Okay.
A. -- for us.
Q. What's the distinction you draw
between that and being a distributorship?
A. That they have -- for me a
distributor is also responsible for selling in
all terms. This is not the responsibility of
this warehouse. This warehouse is only managing
the floor of goods.
Q. I see.
So Ferrero makes the sale and then
forwards the purchase orders to Aspen who then
does the shipping?
A. Deploy, exactly.
Q. And what region does Aspen cover in
terms of shipping?
A. Precisely, I can't tell. But I would
say most of the West Coast and all the way down
to the Rockies.
Q. Before Ferrero was using Aspen for
that function, who was it using to supply to ship
products to that region?
A. We were -- we had the global logistic
contract with the company OHL.

CONFIDENTIAL - KREILMANN
California." Do you see that?
A. Yes.
Q. Okay. What is the name of the
distributorship located in Ontario, California?
A. It's Aspen Warehouse.
Q. Aspen Warehouse?
A. Aspen, A-S-P-E-N, like the ski
resort.
Q. Like in Colorado?
A. Yes. But that has been a recent
choice.
Q. How long have you been using them?
A. The contract, to my knowledge, is
within the last six months.
Q. Before Aspen Warehouse -- well, let
me back up. Let me strike that and let me back
up.
Aspen Warehouse is a distributorship,
correct?
A. No, it's what we call a 3PL.
Q. Excuse me?
A. A 3PL, which is a public warehouse.
So it perform activities of warehousing and
shipping --

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Q. Does that stand for something that
you know?
A. Osborn and then something.
Q. Okay.
A. And so they were -- we were in
contract with OHL and they were performing this
activity for us in California.
Q. Okay. Why did that contract end?
A. Because the service that was
performed wasn't satisfactory.
Q. In what respect?
A. The service level, the
responsiveness, the accuracy of the inventory.
We had a list of issues that didn't improve.
Q. When Nutella is being distributed -well, let me back up.
Nutella is manufactured in Brantford,
Ontario, correct?
A. Correct.
Q. When it's then distributed, does it
go directly from Brantford to your shippers like
Aspen?
A. If it is an order that transit to
this warehouse, it is, from the factory directly

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CONFIDENTIAL - KREILMANN
to this warehouse.
Q. Okay. Are there other things that
might happen under other circumstances?
A. We can ship directly from the factory
of Brantford some customers, if they have
sufficient quantities, so what we call
truckloads, or there is a possibility also if the
orders are too small, that there is a
cross-docking in between. So that can't be
excluded.
Q. Previously, you testified that there
are offices as well as a factory in Brantford,
Ontario; is that right?
A. Yeah, there are offices related to
the manufacturing activity.
Q. Okay. What sort of -- well, how many
people work in the offices versus the factory?
A. I don't know.
MR. BISH: Object, calls for
speculation.
Q. Okay. If you know. If you don't -A. I -Q. If I ask you question that you don't
know, you can tell me you don't know.

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If Ferrero is going to change an
ingredient in Nutella or say change the amount of
an ingredient or do something to mix it up, who
at Ferrero is responsible for making decisions or
determinations about the formulation of the
product?
MR. BISH: Object to form.
A. I'm not sure exactly who is
responsible for that. I suspect that there are
many steps and it is not the sole responsibility
of Brantford.
Q. Are they involved in the formulation
of the product, to your knowledge?
A. To my knowledge, they should be
involved in the ability to -- in this kind of
event being able to execute a change in
formulation.
Q. Okay. Does Ferrero do periodic
quality control testing, sampling of product that
is being manufactured in Brantford to -A. Absolutely.
Q. And who is responsible for that
function?
MR. BISH: Objection, calls for

CONFIDENTIAL - KREILMANN
A. I don't know the answer.
Q. Okay. If you wanted to find out, how
would you find that out?
A. I would call the plant manager.
Q. Do you know who that is?
A. Yes.
Q. Who is that?
A. It's Del Lucca, D-E-L space L-U-C-C-A.
Q. What functions do the people in the
office part of the Brantford facilities perform?
MR. BISH: Objection, calls for
speculation.
A. Well, it's not my accountability. So
I can only speculate about the function that they
perform. I would say procurement, planning,
those kind of things.
Q. What about things like formulation of
the product?
MR. BISH: Same objection.
Q. Is that handled in Canada?
A. What exactly do you mean with
"formulation?"
Q. So, for example, if Nutella is going
to change the ingredient -- excuse me.

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A. A broker is assisting the company in
the

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A. I would like -- generally speaking,

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the

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MR. BISH: Object to form.

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CONFIDENTIAL - KREILMANN
Q. Mr. Kreilmann, I'm handing you what's
been marked as Plaintiff's Exhibit 9. I'm going
to represent to you that this is a business
information report we ran through Dunn and
Bradstreet on March 23, 2011.
If you'd take a moment to review it. The
questions I want to ask are on the fourth page.
MR. BISH: This is a document he's,
obviously, never seen before, correct?
THE WITNESS: Correct.
Q. Have you had a chance to review it?
A. Up to the page that you want to
interrogate me.
Q. Okay, fair enough.
So, on Page 4 of this Dunn and Bradstreet
report, and recognizing that you haven't seen
this before, I just want to ask about the
substantive information in it.
You see it says, subsidiaries Ferrero
Salesco, all one word, U.S.A., Inc.?
A. Yes.
Q. What is Ferrero Salesco?
A. Ferrero Salesco is an entity that has
been created and I don't remember when it was --

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A. I don't know.
Q. Is there anything in Rockford,
Illinois that Ferrero Salesco interacts with,
say, a third party?
A. Really, to my knowledge, this is new
information for me.
Q. Does Ferrero have a distributorship
or shipper in Illinois?
A. We used to have a cost docking
operation in Illinois but, again, as third-party
supply.
Q. Today does Ferrero U.S.A. use anybody
in Illinois?
A. Broadly speaking?
Q. For services relating to Nutella;
broadly speaking, yes.
A. A broker. But, again it's a third
party and we may still, I can't exclude use the
close docking operation but it's very small.
Q. What's the name of the broker in
Illinois?
A. The name is Carline O'Brien.
Q. Is that a company or a person?
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CONFIDENTIAL - KREILMANN
it was way before my time -- to separate the
sales entity from the rest of the organization.
Q. Okay. Does it share offices with
Ferrero U.S.A.?
A. Yes.
MR. BISH: Object to form.
Q. Does Ferrero Salesco have any other
offices, other than in Somerset, New Jersey?
A. No, not to my knowledge.
Q. Do you see underneath that it says,
branches U.S.?
A. Yes.
Q. And do you see it has three purported
branches of Ferrero U.S.A. in the United States?
A. Yes.
Q. The first one says there is a branch
in Rockford, Illinois. Do you see that?
A. I see that.
Q. Do you have an understanding about it
-- well, let me just start, is there a branch of
Ferrero U.S.A. in Rockford, Illinois?
A. Absolutely not, not to my knowledge.
Q. Do you have an understanding of where
Dunn and Bradstreet got this information?

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Q. And what territory is Illinois in?
A. Precisely, again, I cannot define the
territory as they moving. But let's say that
it's probably encompass most of the Great Lakes,
Minnesota, Indiana, Michigan.
Q. Okay. And who is responsible for
shipping Nutella to that region, in the same way
that Aspen is responsible for the region that
covers California?
A. Again, it can come from various
sources. If the volume is big enough, it can go
directly from Brantford to the customer. The
dedicated warehouse for that area should be
Granite City, but it's not excluded that some
shipment are made out of Somerset.
Q. See underneath the Rockford, Illinois
it says that there is a branch in New York, New
York; is that true?
A. I'm not aware of that. It's new
information. All I know is that we used to be
located in New York, but we closed this location
several years ago.
Q. When did you close the New York
location?

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A. Actually, I don't know when we
effectively legally closed this location. I know
where -- when we moved out of the location.
Q. Okay. When did you move out of the
location?
A. Which was, approximately, in the
'90s, early '90s.
Q. Okay. And, finally, underneath that
it says that there is a branch in Newark, New
Jersey; is that true?
A. New information.
Q. Okay.
A. Never come across this information.
Q. Do you have any understanding what
that might refer to like an earlier -A. I -- I, honestly, can't refer to the
location at all with what I know about the
company.
Q. Okay. Do your attorneys, Wilson
Sonsini, represent you in any other litigation
that's pending?
MR. BISH: Okay. Objection. First
of all, what topic, what deposition topic, are we
talking about now?

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CONFIDENTIAL - KREILMANN
2
Q. I just want to know if Wilson Sonsini
3
represents you in any other litigation other than
4
the litigation over -- well, let's put it this
5
way.
6
Wilson Sonsini represents Ferrero in this
7
case, correct?
8
A. Yes.
9
Q. Does Wilson Sonsini represent Ferrero
10
with respect to any other cases involving
Nutella?
MR. BISH: Okay. So I'm going to
object to form. And let's just be -- I mean,
plainly, there is the New Jersey case. Is that
what you're referring to, or are you referring to
other unrelated -MR. FITZGERALD: There is two New
Jersey cases.
MR. BISH: That's right.
MR. FITZGERALD: And I don't know the
answer with respect to both of them.
MR. BISH: Okay.
MR. FITZGERALD: So that's my first
question.
Q. So there's our case. There's the

CONFIDENTIAL - KREILMANN
MR. FITZGERALD: I mean, if you want
me to -- if you want to get into the topics and
do a specific -- I mean, do you have a problem
with the question?
MR. BISH: I might. And I really
don't understand how that's related to any of the
deposition topics about venue.
MR. FITZGERALD: Well, I think it's
related to venue because it has to do with
convenience and so forth. And not only that, but
-MR. BISH: Okay. So we're going to
tread carefully on privileged grounds.
MR. FITZGERALD: Sure.
MR. BISH: The answer to the question
is going to be a yes or no.
MR. FITZGERALD: I'm not going to ask
-MR. BISH: And let's be careful on
the words we're using here.
Okay.
MR. FITZGERALD: Okay. Yeah, I'm not
going to ask anything privileged about any
communications.

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CONFIDENTIAL - KREILMANN
Glover case in New Jersey, which I believe Wilson
represents you; is that correct?
A. Yes.
Q. Okay. And then there's the state
case in New Jersey. Does Wilson Sonsini
represent you with respect to the case that was
brought in New Jersey State Court?
A. Yes.

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A. Connie Evers is -- I don't know if I

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Q. I see. So the first one is the week

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CERTIFICATE

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--------------------I N D E X-------------------TESTIMONY OF: BERNARD F. KREILMANN, CFO PAGE

IN RE: NUTELLA DECEPTIVE )
SALES PRACTICES & MARKETING )
LITIGATION
)
-----------------------------)
I, SILVIA P. WAGE, a Notary Public within
and for the State of New York, do hereby certify:
BERNARD F. KREILMANN, C.F.O., the witness
whose deposition is hereinbefore set forth, was
duly sworn by me and that such deposition is a
true record of the testimony given by such
witness.
I further certify that I am not related to
any of the parties to this action by blood or
marriage; and that I am in no way interested in
the outcome of this matter.

3

EXAMINATION BY MR. FITZGERALD
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IN WITNESS WHEREOF, I have hereunto set my hand
this 26th day of April 2011.

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____________________________
SILVIA P. WAGE, CCR, CRR, RPR

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4

------------------E X H I B I T S---------------EXHIBIT NO.
PAGE/LINE
Plaintiff's Exhibit 1
Plaintiff's Amended Notice of Taking Rule
30(b)(6) Deposition of Defendant..........8/3
Plaintiff's Exhibit 2
Defendant Ferrero U.S.A., Inc.'s Objections to
Plaintiffs' Amended Notice of Taking
Deposition................................8/6
Plaintiff's Exhibit 3
Declaration of Bernard F. Kreilmann in Support of
Defendant's Motion to Transfer Venue to The
District of New Jersey...................11/12
Plaintiff's Exhibit 4
Defendant Ferrero U.S.A., Inc.,'s Objections and
Responses to Plaintiffs' Interrogatories,
Set One..................................21/7
Plaintiff's Exhibit 5
Chart entitled, "Attachment A" marked
Confidential.............................21/24
Plaintiff's Exhibit 6
Document entitled, "Attachment B" marked
Confidential.............................22/4
Plaintiff's Exhibit 7
Chart entitled, "Attachment C" marked
Confidential.............................22/6
Plaintiff's Exhibit 8
Defendant Ferrero U.S.A., Inc.'s Objections to
Plaintiffs' Request for Production of Documents,
Set One..................................39/12
Plaintiff's Exhibit 9
Business Summary Report printed 3/23/11..53/23
Plaintiff's Exhibit 10
Chart FERRERO000042 marked Confidential..74/2
Exhibit No. 11
Chart entitled Media Jan 2007 - March 2011
FERRERO000031 to 41 marked Confidential..74/5

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Exhibit C

Exhibit Redacted Pursuant to
Protective Order
See Plaintiffs’ Ex Parte
Motion to File Under Seal

Exhibit D

Exhibit Redacted Pursuant to
Protective Order
See Plaintiffs’ Ex Parte
Motion to File Under Seal

Exhibit E

Exhibit Redacted Pursuant to
Protective Order
See Plaintiffs’ Ex Parte
Motion to File Under Seal

Exhibit F

Exhibit Redacted Pursuant to
Protective Order
See Plaintiffs’ Ex Parte
Motion to File Under Seal

Exhibit G

Exhibit H

Navigating The New Jersey Courts
With Local Counsel
by Donald E. Taylor, Esq. and James E. Tonrey, Jr., Esq.
Consider the following scenario:

A high-powered Chicago litigator, directing a
New Jersey litigation, is aware that discovery
will not be completed by the Court-generated
discovery end date. A full two weeks before
discovery closes, the Chicago lawyer instructs
local counsel, who had been serving merely
as a New Jersey “mailbox” to this point, to
extend discovery. Because the New Jersey
Court Rules require motions to extend discovery
to be filed on 16 days’ notice, and returnable
prior to the end of the discovery period, this
prominent litigator must now show “exceptional
circumstances” for the “late” extension request,
or be foreclosed from taking basic discovery
while being forced to reckon with an automatic
trial date.
No lawyer -- let alone one practicing in
an unfamiliar jurisdiction -- wants to be placed
in such an uncomfortable situation. Yet, given
some peculiarities of New Jersey practice,
in both State and Federal Court, this type of
situation can befall even the most diligent outof-state lawyer admitted pro hac vice.
Retaining local counsel to serve merely
as a “mailbox” or filing assistant can transform
the best prepared papers into objects of scorn.
No lawyer wants to explain to a client that
carefully-prepared (and expensive) papers have
not been accepted for filing, or that deadlines
established by Court rules, by oversight, were
not met.
With this in mind, it is useful to consider
a few nuances of New Jersey practice that
may be unfamiliar to out-of-state lawyers, and

February 2010

which demonstrate the importance of retaining
competent, active local counsel in New Jersey.
A good starting point is the recent
amendments to New Jersey’s State Court
rules concerning the form of Case Information
Statement (“CIS”) that all parties must file at
the commencement of the case. The form
was recently amended to require the filer to
certify that he or she has removed or redacted
personal-identifying information such as
social security numbers or financial account
numbers. While this new innovation may elude
practitioners relying on outdated CIS forms,
breach of this requirement could lead to the
imposition of sanctions upon the filer.
Another nuance of New Jersey practice,
illustrated above, involves the time period for
concluding discovery and the requirement
that a motion to extend discovery be filed and
made returnable prior to the expiration of the
discovery period. While this requirement may
sound mundane and easily satisfied, it may be
challenging in practice. Motion days in New
Jersey are generally every other Friday, and the
schedule is rigidly enforced. Couple that with
the fact that motions must be filed at least 16
days in advance of the scheduled return date,
the well-prepared practitioner, as a practical
matter, must be thinking about extending the
discovery period at least three weeks to a month
prior to the discovery end date, depending on
when the discovery period expires in relation to
the court’s motion schedule. If the discovery
period ends without a motion to extend being
timely filed and argued, the clerk’s office
automatically generates a trial date regardless
of whether discovery is complete, and the lawyer

Navigating The New Jersey Courts With Local Counsel
needing additional discovery must contend with
adjourning a trial date (which, following the
expiration of the discovery period, cannot be
adjourned on the grounds that discovery is not
complete).
Another noteworthy aspect of New
Jersey practice involves expert discovery. The
New Jersey Court rules protect from discovery
draft expert reports and communications
between the expert and the attorney, which is
a practice that differs from the current Federal
Rules of Civil Procedure.
Consequently,
familiarity with the New Jersey Court rules will
enable counsel to remove draft reports and
other communications between the attorney
and the expert from production and avoid the
potential waiver of applicable privileges.
A final nuance concerns practice in
federal court in New Jersey. Three vicinages
comprise the District of New Jersey, in Newark,
Camden and Trenton. Regardless of the
vicinage in which one is practicing, however,
the District Judges require a very comprehensive
form of final pretrial order. While the specifics
may vary from judge to judge, some general
requirements include: specifying all deposition

February 2010

read-in testimony, by page and line, setting
forth objections and counter-designations to
such read-in testimony; listing all trial exhibits
and objections thereto; and having to meet
with adverse counsel prior to the trial to agree
upon proposed jury charges, where applicable.
The Court may also require counsel to submit
a statement of stipulated facts, a statement of
contested facts, and list all contemplated in
limine motions. While it is obvious that preparing
a final pretrial order is time-consuming, a wellprepared practitioner will be aware of the form
of final pretrial order that a particular judge
requires, will prepare and organize the case
accordingly, and will begin preparing the final
pretrial order well in advance of the due date.
Counsel that is unaware of this aspect of New
Jersey federal court practice may find him or
herself in quite an uncomfortable position at
the end of the case.
Undoubtedly, New Jersey practice has
a number of nuances of which counsel from
outside the State should be cognizant and/
or have competent local counsel. Otherwise,
litigating a case in New Jersey can become
burdensome and needlessly frustrating.

90 Woodbridge Center Drive
Woodbridge, NJ 07095
Meridian Center I, Two Industrial Way West
Eatontown, NJ 07724

Donald E. Taylor

James E. Tonrey, Jr.

110 William Street
New York, NY 10038

Phone: [phone]
Email: [e-mail]

Phone: [phone]
Email: [e-mail]

Two Penn Center Plaza, Suite 910
Philadelphia, PA 19102

Donald E. Taylor is a shareholder and James E. Tonrey, Jr.,
is counsel in the complex commercial litigation department
at Wilentz, Goldman & Spitzer, P
.A.

Park Building, 355 Fifth Avenue, Suite 400
Pittsburgh, PA 15222

This article is for informational purposes only, does not constitute legal advice, and may not be reasonably relied upon as
such. You should consult a qualified attorney for independent legal advice with regard to any particular set of facts.

Exhibit I

Go to complete list of attorneys:  

Karen A. Confoy
Karen Confoy has extensive litigation experience in the federal and state courts,
particularly with complex litigation matters and business, intellectual property and
employment disputes. She has represented clients in multi-district litigations,
class actions, multi-party actions and nationally coordinated multi-jurisdictional
litigations, and regularly serves as New Jersey litigation local counsel for leading
firms across the United States.
Ms. Confoy also provides clients with a variety of counseling services, including
in-house training sessions on employment issues and public contracting matters,
and has represented clients in numerous mediations and arbitrations.
Ms. Confoy served as judicial clerk to the Honorable Garrett E. Brown, Jr., United
States District Court Judge for the District of New Jersey, during the 1986 - 1987
court terms.
Ms. Confoy is past president and serves on the Board of Directors of Mobile
Meals of Trenton/Ewing, a nonprofit service organization that delivers meals to
the homebound.
Education
Rutgers University School of Law, Camden (J.D., 1985)
Rutgers College, Rutgers University (B.A., 1981)
Bar Admissions
New Jersey (1985)
United States District Court for the District of New Jersey (1985)
United States District Court for the Eastern District of Pennsylvania
(1987)
United States Court of Appeals, Third Circuit (1994)
Professional Memberships and Appointments
Member, Mercer County Bar Association
Member, District VII (Mercer County) Ethics Committee of the
Supreme Court of New Jersey (2003 - 2007)
Barrister, Mercer County American Inns of Court (2002-2003)
Member, New Jersey State Bar Association (Federal Practice and
Procedures Section)
Member, American Bar Association (Litigation and Intellectual
Property Sections)
Member, The Association of the Federal Bar of the State of New
Jersey

Karen A. Confoy
Director
Direct:              609.989.5012      
Fax: [phone]
[e-mail]
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Practice Areas
Administrative/Governmental
  Employment Law
  Public Contracts Law
Gaming
Litigation
  Business and Commercial Law
  Employment Law
  Intellectual Property Law
  Local Counsel

Publications
  Implied Contracts in the Employment
Relationship (New Jersey Law
Journal)

Erica S. Helms

Erica S. Helms
Director
PHONE: [phone]
FAX: [phone]
E-MAIL: [e-mail]
PRACTICE AREAS
Administrative/Governmental
Employment Law
Public Contracts Law
Litigation
Business and Commercial Law
Intellectual Property Law
EDUCATION
Widener University School of Law
(J.D., cum laude, 2003)
Miami University (B.S., 2000)

Erica Helms focuses her practice on complex business litigation, as well as on
administrative and regulatory compliance matters involving agencies
throughout the State of New Jersey, and related appellate proceedings. Ms.
Helms has extensive public procurement experience at the State and local
levels, which includes challenging bid specifications and unjust contract
awards, and defending successful bidders. In this regard, Ms. Helms has
represented bidders in connection with some of the largest procurements in
the State. Ms. Helms also routinely counsels corporate clients with regard to
various employment matters involving wage and hour compliance, employee
terminations and layoffs, employee discipline, workplace privacy, State and
federal leave laws, employment policies and handbooks, and the protection of
trade secrets.
Erica Helms also routinely serves as New Jersey local counsel to leading law
firms across the country in connection with a wide variety of cases, including
patent, copyright, trademark, unfair competition, employment discrimination
and commercial disputes. She has served as local counsel in a number of high
stakes patent infringement actions implicating a range of technologies,
including patent infringement actions filed under the Hatch Waxman Act. Ms.
Helms’ local counsel experience also includes working with the Recording
Industry Association of America and the Motion Picture Association of
America in conjunction with their anti-piracy efforts.
PROFESSIONAL MEMBERSHIPS AND APPOINTMENTS
Member, Mercer County Bar Association
Member, The Association of the Federal Bar of the State of New Jersey

BAR ADMISSIONS
New Jersey (2003)
United States District Court for the
District of New Jersey (2003)
United States Court of Appeals for the
Third Circuit (2006)
United States Court of Appeals for the
Federal Circuit (2006)

50 West State Street, Trenton, NJ 08608

•

609.392.2100

•

www.ster nslaw.com

Exhibit J

REDACTED VERSION – FULL VERSION FILED UNDER SEAL
Third-Party Witness

Basis

Location

Possible Testimony
• Basis for Ferrero’s nutritional
and health claims with respect to
Nutella

Connie Evers –
Purported children’s
nutrition expert on whose
opinion Ferrero relies for
the campaign Plaintiffs
challenge as false and
misleading

• MCC ¶¶ 82-88
• Kreilmann Dep. Tr.
61:25-73:16

Beaverton, Oregon

• Ferrero’s knowledge of the
effects of Nutella on children’s
health
• Ferrero’s intentions with respect
to the Nutella advertising
campaign Plaintiffs challenge
• What Ferrero told and provided
to Ms. Evers, and what Ms. Evers
told and provided to Ferrero

Del Lucca –
Plant manager of Ferrero
Canada, Ltd.’s Brantford,
Ontario factory

Kreilmann Dep. Tr.
18:12-21:5, 51:10-52:2

Brantford, Ontario,
Canada

Kreilmann Dep. Tr.
27:8-25

Unknown

1

Possible Relevance
• Whether Ferrero’s
nutritional and health
claims with respect to
Nutella are substantiated,
accurate, truthful, and
complete
• Whether Ferrero
intentionally misled
consumers, such that the
imposition of punitive
damages is appropriate

REDACTED VERSION – FULL VERSION FILED UNDER SEAL
Third-Party Witness

Basis

Location

Kreilmann Dep. Tr.
52:3-20

Brantford, Ontario

Kreilmann Dep. Tr.
65:4-24

Princeton, NJ

Kreilmann Dep. Tr.
70:6-71:17

Bogota, Columbia

onal
value of Nutella

–
f

Possible Relevance

Unknown

Kreilmann Dep. Tr.
52:3-53:17, 85:2-13

Possible Testimony

2

REDACTED VERSION – FULL VERSION FILED UNDER SEAL
Third-Party Witness

Basis

Location

Kreilmann Dep. Tr.
85:2-86:6

Possible Relevance

Germany

Kreilmann Dep. Tr.
133:19-135:12

Possible Testimony

Luxemburg

Kreilmann Dep. Tr.
24:15-26:18

[Representative of]

• 5505 Concurs St.,
Ontario, CA 91764

Aspen Logistics –

• 1901 California Street,
Redlands, CA 92374

3PL Ferrero uses to
distribute Nutella on the
West Coast

Kreilmann Dep. Tr.
14:22-16:20

• 43385 Business Park
Dr., Temecula, CA
92590

3

• Ferrero’s policies and procedures • Foundational
relating to the distribution and sale • What Ferrero tells its
of Nutella
customers about shelf
• Ferrero’s customers
placement, etc.

REDACTED VERSION – FULL VERSION FILED UNDER SEAL
Third-Party Witness

Basis

Location

Possible Testimony

Possible Relevance

[Representative of]
OHL –

–

Kreilmann Dep. Tr.
16:21-17:15

1580 Eastridge Avenue
Riverside, CA 92507

Kreilmann Dep. Tr.
56:13-25

3PL Ferrero previously
used to distribute Nutella
on the West Coast

Unknown

Kreilmann Dep. Tr.
36:4-7

• Kreilmann Dep. Tr.
33:13-37:6
• FERRERO001207
• Ferrero Interrogatory
Response No. 4

4

• Ferrero’s policies and procedures • Foundational
relating to the distribution and sale
• What Ferrero tells its
of Nutella
customers about shelf
• Ferrero’s customers
placement, etc.

REDACTED VERSION – FULL VERSION FILED UNDER SEAL
Third-Party Witness

Basis

Location

Kreilmann Dep. Tr.
41:13-17

Kreilmann Dep. Tr.
61:25-62:19, 63:2364:12, 69:17-23, 71:1824

5

Possible Testimony

Possible Relevance

Exhibit K

U.S. DISTRICT COURT - JUDICIAL CASELOAD PROFILE
12-MONTH PERIOD ENDING
SEPTEMBER 30
CALIFORNIA SOUTHERN

Numerical
Standing

2009

2008

2007

2006

2005

Filings*

9,543

9,191

7,723

7,371

6,845

6,566

Terminations

10,061

9,414

8,130

7,822

6,389

6,694

Pending

OVERALL
CASELOAD
STATISTICS

2010

4,870

4,682

4,252

3,942

3,776

3,324

3.8

36

6

23.6

29.5

39.4

45.3

5

1

Over Last Year

U.S.

Circuit

% Change in Total Filings
Over Earlier Years
Number of Judgeships

13

13

13

13

13

13

16.5

.0

11.8

11.6

12.0

12.0

Total

734

706

594

567

527

504

8

3

Civil

241

244

204

218

220

208

72

9

Criminal Felony

375

364

308

254

209

193

5

2

Supervised Release Hearings**

118

98

82

95

98

103

3

2

Pending Cases

375

360

327

303

290

256

53

9

Weighted Filings**

530

539

445

439

421

387

26

8

Terminations

774

724

625

602

491

515

6

2

Trials Completed

16

20

22

30

23

29

65

9

Criminal Felony

3.8

3.9

3.9

4.3

3.9

4.2

2

1

Civil**

6.0

6.0

6.2

5.9

6.6

6.3

9

2

31.6

32.0

25.5

24.0

33.0

25.4

61

9

Number

165

159

133

111

153

138

Percentage

6.9

6.7

6.5

5.2

6.9

7.1

58

7

1.1

1.1

1.1

1.2

1.2

1.1

Avg. Present for Jury Selection

56.16

56.77

55.28

55.77

53.64

58.66

Percent Not Selected or
Challenged

47.8

43.8

43.3

43.5

42.2

44.5

Vacant Judgeship Months**

FILINGS
ACTIONS
PER
JUDGESHIP

MEDIAN
TIMES
(months)

From Filing to Disposition
From Filing to Trial** (Civil Only)
Civil Cases Over 3 Years
Old**

OTHER

Average Number of Felony Defendants Filed Per Case

Jurors

2010 CIVIL AND CRIMINAL FELONY FILINGS BY NATURE OF SUIT AND OFFENSE

Type of

TOTAL

A

B

C

D

E

F

G

H

I

J

K

L

Civil

3132

62

79

844

63

240

124

329

290

157

283

35

626

Criminal*

4876

318

719

3220

46

381

35

46

3

7

30

47

24

*   Filings in the "Overall Caseload Statistics" section include criminal transfers, while filings "By Nature of Offense" do not.
** See "Explanation of Selected Terms."

U.S. DISTRICT COURT - JUDICIAL CASELOAD PROFILE
12-MONTH PERIOD ENDING
SEPTEMBER 30
NEW JERSEY

Numerical
Standing

2009

2008

2007

2006

2005

Filings*

7,907

8,003

7,710

7,699

7,275

7,539

Terminations

8,188

8,334

7,654

7,752

7,480

7,605

Pending

OVERALL
CASELOAD
STATISTICS

2010

6,712

6,866

7,101

6,892

6,855

6,987

-1.2

62

5

2.6

2.7

8.7

4.9

36

3

Over Last Year

U.S.

Circuit

% Change in Total Filings
Over Earlier Years
Number of Judgeships

17

17

17

17

17

17

11.7

.0

.0

.0

32.3

27.8

Total

465

471

454

454

428

444

38

3

Civil

414

412

391

392

369

387

20

3

Criminal Felony

39

48

52

51

51

48

81

3

Supervised Release Hearings**

12

11

11

11

8

9

79

3

Pending Cases

395

404

418

405

403

411

49

5

Weighted Filings**

492

511

511

496

481

493

37

3

Terminations

482

490

450

456

440

447

34

3

Trials Completed

11

12

13

13

11

10

84

6

Criminal Felony

12.3

11.0

11.7

10.8

12.1

10.0

78

4

Civil**

6.8

7.6

7.6

7.6

8.2

7.3

17

3

40.6

37.7

38.5

36.0

33.0

36.7

72

5

Number

306

307

362

316

306

346

Percentage

5.2

5.1

5.8

5.3

5.2

5.7

50

3

1.1

1.1

1.1

1.2

1.2

1.3

Avg. Present for Jury Selection

63.98

78.07

81.01

67.94

88.98

75.41

Percent Not Selected or
Challenged

37.5

37.2

20.7

34.9

39.2

38.3

Vacant Judgeship Months**

FILINGS
ACTIONS
PER
JUDGESHIP

MEDIAN
TIMES
(months)

From Filing to Disposition
From Filing to Trial** (Civil Only)
Civil Cases Over 3 Years
Old**

OTHER

Average Number of Felony Defendants Filed Per Case

Jurors

2010 CIVIL AND CRIMINAL FELONY FILINGS BY NATURE OF SUIT AND OFFENSE

Type of

TOTAL

A

B

C

D

E

F

G

H

I

J

K

L

Civil

7046

171

456

1254

68

68

948

1121

754

325

979

8

894

Criminal*

649

6

148

34

80

206

55

29

9

13

12

13

44

*   Filings in the "Overall Caseload Statistics" section include criminal transfers, while filings "By Nature of Offense" do not.
** See "Explanation of Selected Terms."