Hohenberg v. Ferrero USA, Inc

Filing 38

REPORT of Rule 26(f) Planning Meeting. (Fitzgerald, John) (ag).

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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IN RE FERRERO LITIGATION
______________________________________

JOINT RULE 26(F) REPORT
ATHENA HOHENBERG & LAURA RUDEBARBATO, individually and on behalf of all
others similarly situated,

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Judge: The Honorable Marilyn L. Huff

Plaintiffs,

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

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

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IN RE FERRERO LITIG., NO. 3:11-CV-00205-H-CAB
JOINT RULE 26(F) REPORT

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On April 29, 2011, counsel for the parties met by telephone to conduct a Rule 26(f) conference

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in accordance with the Federal Rules of Civil Procedure. Representing Plaintiff was Jack Fitzgerald

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and representing Defendant Ferrero U.S.A., Inc. (“Ferrero”) was Colleen Bal and Dale Bish. The

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parties discussed the case and jointly (except as noted below) make the following report.

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I.

PROCEDURAL STATUS AND INITIAL MATTERS

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This is a consolidated putative class action against Ferrero, the maker of Nutella. On March

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22, 2011, the Court consolidated Hohenberg v. Ferrero U.S.A., Inc., No. 11-cv-00205 (S.D. Cal., filed

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Feb. 1, 2011), and Rude-Barbato v. Ferrero U.S.A., Inc., No. 22-cv-0249 (S.D. Cal., filed Feb. 4,

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2011), and appointed their counsel Interim Lead Co-Class Counsel. See Hohenberg v. Ferrero U.S.A.,

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Inc., 2011 U.S. Dist. LEXIS 38471 (S.D. Cal. Mar. 22, 2011). Plaintiffs filed their Master

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Consolidated Complaint the next day, on March 23 (Dkt. No. 14).

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On March 24, Ferrero filed a Motion for Transfer of Venue (Dkt. No. 19), which was denied

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(Dkt. No. 37). On March 29, Ferrero filed a motion seeking an extension of time in which to respond

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to the Complaint, and a stay of discovery (Dkt. No. 21). The Court granted Ferrero’s motion in part by

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extending its deadline to respond to the Complaint to April 18, and denied Ferrero’s request for a

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discovery stay. (Dkt. No. 24.) Ferrero filed a Motion to Dismiss the Master Consolidated Complaint

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on April 18, with the hearing set for June 13. Plaintiffs’ Opposition is due May 30.

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At this time, the parties have not come to any agreement as to stipulating to dismissing or

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striking of any claims or defenses.

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III.

STATEMENT OF CLAIMS, COUNTERCLAIMS AND AFFIRMATIVE DEFENSES

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1.

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Plaintiffs’ position is fully set forth in their Master Consolidated Complaint. In sum,

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Plaintiffs—both mothers of young children—allege that, at various times during the Class Period, they

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purchased Nutella spread after being exposed to and relying upon Ferrero’s advertisements and

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representations that Nutella is, for example, a “healthy breakfast” and is “nutritious.” Plaintiffs were

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searching for healthy foods to serve their families for breakfast or snacks because they are aware that

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healthy nutrition is important for maintaining the overall health of their families. Plaintiffs trusted the

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Plaintiffs’ Position

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IN RE FERRERO LITIG., NO. 3:11-CV-00205-H-CAB
JOINT RULE 26(F) REPORT

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representations Ferrero made in its labeling Nutella, “An example of a tasty yet balanced breakfast,”

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in association with a picture showing fresh fruits, whole wheat bread, and orange juice. Plaintiffs were

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vexed to learn that Nutella is in fact not a “healthy” or “nutritious” food but instead is the next best

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thing to a candy bar, and that Nutella contains dangerous levels of saturated fat, the consumption of

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which has been shown to cause heart disease and other serious health problems. Saturated fat is the

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main dietary cause of high blood cholesterol, which can increase ones’ risk of a heart attack, stroke,

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and narrowed arteries (atherosclerosis). Nutella also contains over 55% processed sugar, the

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consumption of which has been shown to cause type-2 diabetes and other serious health problems.

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Moreover, during some of the Class Period, Nutella contained artificial trans fat, a substance widely

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recognized as dangerous to human health, and which is banned in many places, including in

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California’s schools and restaurants. In short, Nutella® is simply not a “healthy” or “nutritious”

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product to consume.

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The Nutella label also included a link to a website showing pictures of a mother feeding

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Nutella to happy, healthy children. Ferrero also broadcast television commercials portraying a mother

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feeding Nutella to happy, healthy children. Plaintiffs believed, based on these representations both

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individually and especially when taken together as a whole, that Nutella consumption is beneficial to

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children. Nutella, however, contains about 70% saturated fat and processed sugar by weight. Both

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these ingredients significantly contribute to America’s alarming increases in childhood obesity, which

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can lead to life-long health problems. Therefore, Nutella is not part of a nutritionally “balanced”

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breakfast for consumption by children as Ferrero’s advertising deceptively suggests.

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Plaintiff seeks an order compelling Ferrero to (1) cease marketing its products using the

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misleading tactics complained of herein, (2) conduct a corrective advertising campaign, (3) restore the

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amounts by which Ferrero was unjustly enriched, and (4) destroy all misleading and deceptive

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materials and products.

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2.

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As set forth in its motion to dismiss, it is Ferrero’s position that plaintiffs have failed to state a

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viable claim. First, many of plaintiff’s claims are preempted by federal law. Second, plaintiffs have

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Defendant’s Position

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IN RE FERRERO LITIG., NO. 3:11-CV-00205-H-CAB
JOINT RULE 26(F) REPORT

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failed to adequately allege facts demonstrating that any of the challenged statements are actionable

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under California’s Unfair Competition Law, False Advertising Law, or Consumer Legal Remedies

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Act, or that Ferrero has breached any alleged warranty (whether express or implied).

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In the event any of plaintiffs’ claims survive the pleading stage – and Ferrero respectfully

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submits they should not – Ferrero will answer the operative complaint and assert affirmative defenses

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against the remaining claims.

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III. INITIAL DISCLOSURES

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1.

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Plaintiff’s Position
Plaintiffs made their initial disclosures on May 4, 2011.

2.

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Defendant’s Position
Pursuant to stipulation of counsel, Ferrero will serve its initial disclosures on or before May

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20, 2011.

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IV. COMPLEXITY OF THE CASE

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The parties agree that this is a complex case and that certain procedures of the Manual for

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Complex Litigation may be useful for the management of this section. The parties may consult the

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Manual for Complex Litigation to assess whether specified procedures should be utilized as the case

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progresses.

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V. DISCOVERY PLAN

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The parties have been able to cooperate and make reasonable compromises with respect to

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plaintiffs’ venue-related discovery, and anticipate continuing to do so.

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conference, the parties discussed and agreed to work in good faith to divide discovery into reasonably-

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limited “rounds,” that will allow for rolling discovery. The parties therefore propose the following

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discovery plan, subject to adjustment pending the outcome of Ferrero’s motion(s) to dismiss, as well

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as the pending motion before the Panel on Multi-District Litigation:

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//

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IN RE FERRERO LITIG., NO. 3:11-CV-00205-H-CAB
JOINT RULE 26(F) REPORT

During their Rule 26

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Event

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Parties’ Proposed
Date(s)

Discovery Round 1:

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• Third-party discovery, consistent with the Federal Rules of Civil
Procedure.

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• Rule 30(b)(6) depositions, consistent with the Federal Rules of Civil
Procedure:

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ₒ on 30 days’ notice (with parties to meet and confer on mutually
agreeable dates);

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ₒ Objections and Responses due 14 days after service of Rule
30(b)(6) Deposition Notice

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ₒ parties to meet and confer within 7 days after that to agree to
scope of any such deposition.
• Interrogatories:
ₒ Limited to identification and location of witnesses, records,
physical evidence, or other relevant documents or things:

Beginning Immediately

ₒ Responses and Objections due in 30 days.
• Document requests
ₒ Requests to be served one week after Ferrero’ service of
Responses and Objections to initial Interrogatories.
ₒ Directed at a reasonable number of specific custodians, records or
other things identified in response to Interrogatories.
ₒ Responses and Objections due 30 days after service of document
requests. Parties to meet and confer within 7 days thereafter.
Document production to begin on a rolling basis at producing party’s
earliest convenience, and in any event, no later than 25 days after
service of Responses and Objections.

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• Party Depositions, consistent with the Federal Rules of Civil Procedure.

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ₒ Parties may begin serving party deposition notices, with dates for
deposition on or after August 15, 2011.

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Discovery Round 2:

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• Third-party discovery, consistent with the Federal Rules of Civil
Procedure.

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• Party depositions no earlier than August 15, 2011 and consistent with the
Federal Rules of Civil Procedure.

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• Remaining Interrogatories and Requests for Admission.

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ₒ Objections and Responses due in 30 days. Parties to meet and
confer thereafter if necessary.
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IN RE FERRERO LITIG., NO. 3:11-CV-00205-H-CAB
JOINT RULE 26(F) REPORT

July 25, 2011 – October
14, 2011

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• Document requests, if any, directed at any remaining specific custodians,
records or other things, which were not requested as part of Discovery
Round 1 and/or not yet produced in response to such requests, so long as the
requests are narrowly tailored and there exists a reasonable basis for making
the supplemental request.
• September 5, 2011: Deadline to amend complaint, add new parties or
claims by stipulation or leave of court.
Discovery Round 3:
• Expert discovery (class certification)

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ₒ Initial expert disclosures due September 23, 2011

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October 3, 2011 –
November 4, 2011

ₒ Responsive expert disclosures due October 26, 2011

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Discovery Round 4:
• Expert discovery (merits)

March 1, 2012 – April
13, 2012

ₒ Initial expert disclosures due March 1, 2012
ₒ Responsive expert disclosures due April 1, 2012
MOTION & TRIAL SCHEDULE
The parties propose the following motion and trial schedule:
Motion

Proposed Date

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Fact Discovery Cutoff

October 14, 2011

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Plaintiffs’ Motion for Class Certification

October 24, 2011

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Defendant’s Opposition to Class Certification

42 days before hearing

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Plaintiffs’ Reply in Support of Class Certification

21 days before hearing

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Hearing on Motion for Class Certification

Plaintiffs to set hearing on a date which allows
Ferrero at least 4 weeks to file any Opposition

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Expert Discovery Cutoff

April 13, 2012

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Motions for Summary Judgment and Motions to May 1, 2012
Exclude Experts

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Oppositions to Summary Judgment and Motions June 1, 2012
to Exclude Experts
Reply in Support of Summary Judgment and June 29, 20112
Motions to Exclude Experts
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IN RE FERRERO LITIG., NO. 3:11-CV-00205-H-CAB
JOINT RULE 26(F) REPORT

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Motion

Hearings on Summary Judgment and Motions to To be determined, consistent with the Court’s
Exclude Experts
availability
Pretrial Conference (including motions in limine)

To be determined, consistent with the Court’s
availability

Jury Trial

To be determined, consistent with the Court’s
availability; the parties anticipate being prepared
for trial by October 2012

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Proposed Date

SETTLEMENT
The parties will engage in settlement discussions at the appropriate time. Plaintiffs are willing

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to discuss settlement at any time.

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TRIAL ESTIMATE

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Plaintiffs estimate 7 trial days.

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Defendant estimates 7-14 trial days depending on number and scope of remaining claims.

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ADDITIONAL PARTIES
Plaintiffs do not anticipating adding additional parties at this time, but its investigation is
ongoing and Plaintiffs reserve the right to add parties until the deadline for adding parties has passed.
Defendant contends that no other Parties are anticipated.
TRIAL DATE
The parties currently suggest a trial date on or after October 2012 subject to the Court’s

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availability.

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TRIAL BY JURY OR BY COURT

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Plaintiffs’ Statement

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Plaintiffs have demanded a trial by jury. Plaintiffs’ claims under the Unfair Competition Law,

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however, are entirely equitable and not subject to jury trial. Plaintiffs believe a bench trial for

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Plaintiffs’ claims for equitable relief should be concurrent with the jury trial on damages claims.

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Defendant’s Statement

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Defendant demands a jury trial on all claims and defenses so triable.

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IN RE FERRERO LITIG., NO. 3:11-CV-00205-H-CAB
JOINT RULE 26(F) REPORT

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ADDITIONAL INFORMATION
The Court has entered a protective order entered in this action (Dkt. No. 32). The parties

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anticipate entering a mutually acceptable protocol for electronic discovery, including an agreement

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governing the return of any inadvertently produced privileged material.

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Respectfully submitted,

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Dated: May 19, 2011

WILSON SONSINI GOODRICH & ROSATI,
A Professional Corporation
By: /s/ Dale Bish
Dale Bish
[e-mail]
Attorneys for Defendant FERRERO, U.S.A., INC.

Dated: May 19, 2011

THE WESTON FIRM
By: /s/ Jack Fitzgerald
JACK FITZGERALD
[e-mail]
Interim Class Counsel

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IN RE FERRERO LITIG., NO. 3:11-CV-00205-H-CAB
JOINT RULE 26(F) REPORT