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).

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

CASE NO. 3:11-CV-00205-H-CAB
PLAINTIFFS’ UNOPPOSED EX PARTE
APPLICATION TO FILE DOCUMENTS
UNDER SEAL
Judge: The Honorable Marilyn L. Huff

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Plaintiffs,

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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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IN RE FERRERO, NO. 3:11-CV-00205-H-CAB
PLAINTIFFS’ EX PARTE MOTION TO FILE DOCUMENTS UNDER SEAL

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Plaintiffs Athena Hohenberg and Laura Rude-Barbato hereby respectfully apply for permission

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to file the following documents under seal, pursuant to the Protective Order filed in this action, and

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signed by Magistrate Judge Cathy Ann Bencivengo on April 29, 2011 (Dkt. No. 32). Ferrero does not

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oppose this application. These documents are being submitted as part of the Declaration of Jack

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Fitzgerald in Opposition to Ferrero’s Motion to Transfer Venue (Dkt. No. 19). The documents

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requested to be filed under seal are as follows:

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Fitzgerald Dec. Exhibit B: Excerpts from the deposition transcript of Ferrero’s CEO,
Bernard Kreilmann, that Ferrero designated “Confidential.”

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Fitzgerald Dec. Exhibit C: Document produced by Ferrero in response to Interrogatories

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detailing Ferrero’s net sales of Nutella from January 2007 through February 2011, which Ferrero

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designated “Confidential.”

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Fitzgerald Dec. Exhibit D: Document produced by Ferrero in response to Interrogatories

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detailing Ferrero’s Unit and Dollar sales of Nutella in the United States and California from 2007 to

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2010, and for the 12 weeks ending March 20, 2011, which Ferrero designated “Confidential.”

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Fitzgerald Dec. Exhibit E: Printout of native Microsoft Excel file produced by Ferrero on a

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CD marked FERRERO001234-001270, and further marked “CONFIDENTIAL.” The document

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shows underlying and summary Nutella sales data for “mass” stores Wal-Mart and Target, and “club”

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stores Costco and Sams.

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Fitzgerald Dec. Exhibit F: First 10 pages of a document produced by Ferrero bearing

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production numbers FERRERO000134-001128, showing every point Ferrero shipped Nutella to from

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January 2007 through March 2011, which Ferrero designated “Confidential.”

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Fitzgerald Dec. Exhibit J:

Table created by Plaintiffs concerning possible third-party

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witnesses. Plaintiffs seek to file under seal information derived from sources Ferrero designated

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“Confidential.”

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For the foregoing reasons, Plaintiffs’ respectfully request the Court permit them to file the

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foregoing exhibits under seal.1 If the Court finds any documents sought to be filed under seal are not

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Per the Court’s instructions, Plaintiffs are delivering to Chambers two hard copies of each document
sought to be filed under seal, pending resolution of this Motion.
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PLAINTIFFS’ EX PARTE MOTION TO FILE DOCUMENTS UNDER SEAL

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confidential, Plaintiffs respectfully request a specific finding that they are not subject to the Protective

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Order.

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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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PLAINTIFFS’ EX PARTE MOTION TO FILE DOCUMENTS UNDER SEAL