Hohenberg v. Ferrero USA, Inc

Filing 51

MOTION for Class Certification by Athena Hohenberg, Laura Rude-Barbato. (Attachments: # 1 Memo of Points and Authorities, # 2 Declaration of Gregory S. Weston, # 3 REDACTED Exhibits to the Weston Declaration, # 4 Declaration of Jack Fitzgerald, # 5 Declaration of Ronald A. Marron)(Fitzgerald, John). Modified on 8/2/2011 - No proof of service. Email sent to Atty to file proof of service. Removed duplicate text (jah).

1 LAW OFFICES OF RONALD A.
MARRON, APLC

2 RONALD A. MARRON (175650)
3636 4th Avenue, Suite 202

3 San Diego, CA 92109
4 Telephone: [phone]
Facsimile: [phone]
5 [e-mail]

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THE WESTON FIRM
GREGORY S. WESTON (239944)
JACK FITZGERALD (257370)
MELANIE PERSINGER (275423)
888 Turquoise Street
San Diego, CA, 92109
Telephone:
[phone]
Facsimile:
[phone]
[e-mail]
[e-mail]
[e-mail]

8 Interim Class Counsel
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA

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IN RE FERRERO LITIGATION

CASE NO. 3:11-CV-00205 H CAB
Pleading Type: Class Action
Action Filed: February 01, 2011

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DECLARATION OF GREGORY S.
WESTON IN SUPPORT OF
PLAINTIFFS’ MOTION FOR CLASS
CERTIFICATION

Judge: Hon. Marilyn L. Huff
Date: October 11, 2011
Time: 10:30 a.m.
Location: Courtroom 13

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In Re Ferrero Litigation, Case No. 3:11-cv-00205 H (CAB)
DECLARATION OF GREGORY S. WESTON

1 I, Gregory S. Weston, declare:
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PART I

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EXHIBITS RELATING TO PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION

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1.

Attached hereto as Exhibit 1 is a true and correct copy Defendant’s Response to

5 Interrogatory No. 8, designated by Ferrero as “HIGHLY CONFIDENTIAL.” Accordingly,
6 Exhibit 1 is being filed under seal.
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2.

Attached hereto as Exhibit 2 is a true and correct copy of excerpts from the

8 deposition of Connie L. Evers, dated July 26, 2011 and designated by Ferrero as
9 “CONFIDENTIAL.” Accordingly, Exhibit 2 is being filed under seal.
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3.

Attached hereto as Exhibit 3 is a true and correct copy of a document titled

11 “ATTACHMENT C,” which contains quarterly advertising and promotional spending data for
12 Nutella during the years 2007 through 2010. Exhibit 3 was labeled at the April 14, 2011
13 deposition of Bernard Kreilmann, Nutella’s CEO, as “Plaintiff’s Exhibit 7,” and is designated by
14 Ferrero as “CONFIDENTIAL.” Accordingly, Exhibit 3 is being filed under seal.
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4.

Attached hereto as Exhibit 4 is a true and correct copy of a document titled

16 “ATTACHMENT A,” which contains quarterly net sales data for Nutella during the years 2007
17 through 2010. Exhibit 4 was marked at the Kreilmann deposition as “Plaintiff’s Exhibit 5” and is
18 designated by Ferrero as “CONFIDENTIAL.” Accordingly, Exhibit 4 is being filed under seal.
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5.

Attached hereto as Exhibit 5 is a true and correct copy of an email chain bearing

20 production number CEVERS953, which was produced by third-party Connie Evers, and
21 designated by Evers as “CONFIDENTIAL.” Accordingly, Exhibit 5 is being filed under seal.
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6.

Attached hereto as Exhibit 6 is a true and correct copy of a print advertisement

23 for Nutella which, upon information and belief, appeared in national print magazines, including
24 Parents.
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In Re Ferrero Litigation, Case No. 3:11-cv-00205 H (CAB)
DECLARATION OF GREGORY S. WESTON

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7.

Attached hereto as Exhibit 7 is a true and correct copy of a print advertisement

2 for Nutella which, upon information and belief, appeared in national print magazines, including
3 Parenting – School Years.
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8.

Attached hereto as Exhibit 8 is a true and correct copy of a print advertisement

5 for Nutella which, upon information and belief, appeared in national print magazines, including
6 Woman’s day.
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9.

Attached hereto as Exhibit 9 is a true and correct copy of an email chain bearing

8 production numbers CEVERS221, which was produced by third-party Connie Evers, and
9 designated by Evers as “CONFIDENTIAL.” Accordingly, Exhibit 9 is being filed under seal.
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10.

Attached hereto as Exhibit 10 is a true and correct copy of an email chain bearing

11 production numbers CEVERS 946-47, which was produced by third-party Connie Evers, and
12 designated by Evers as “CONFIDENTIAL.” Accordingly, Exhibit 10 is being filed under seal.
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11.

Attached hereto as Exhibit 11 is a true and correct copy of an email chain bearing

14 production numbers CEVERS246-47, and marked at the July 26, 2011 deposition of Ms. Evers
15 as “Plaintiffs’ Exhibit 43.”1 Exhibit 11 was produced by third-party Connie Evers, and
16 designated by Evers as “CONFIDENTIAL.” Accordingly, Exhibit 11 is being filed under seal.
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12.

Attached hereto as Exhibit 12 is a true and correct copy of an article titled

18 “Perfect Snacks to Stock Up on for a Trip,” appearing at the Nickelodeon website,
19 ParentsConnect.com, and marked at the Evers deposition as “Plaintiffs’ Exhibit 33.”
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13.

Attached hereto as Exhibit 13 is a true and correct copy of an executed

21 November 17, 2009 Spokesperson Agreement between Connie Evers and MS&L, as agent for
22 Ferrero, bearing production numbers CEVERS847-51, and marked at the Evers deposition as
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Because of the short time between Ms. Evers’ deposition and the filing of this Motion,
Plaintiffs have not yet received marked copies of the Evers deposition exhibits. Therefore, for the
26 purposes of this Motion, Plaintiffs file non-marked copies of the identical documents that were
27 marked as exhibits during the deposition.
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In Re Ferrero Litigation, Case No. 3:11-cv-00205 H (CAB)
DECLARATION OF GREGORY S. WESTON

1 “Plaintiffs’ Exhibit 25.” Exhibit 13 was produced by third-party Connie Evers, and designated by
2 Evers as “CONFIDENTIAL.” Accordingly, Exhibit 13 is being filed under seal.
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14.

Attached hereto as Exhibit 14 is a true and correct copy of an email chain bearing

4 production numbers CEVERS43-48, and marked at the Evers deposition as “Plaintiffs’ Exhibit
5 20.” Exhibit 14 was produced by third-party Connie Evers, and designated by Evers as
6 “CONFIDENTIAL.” Accordingly, Exhibit 14 is being filed under seal.
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15.

Attached hereto as Exhibit 15 is a true and correct copy of an email chain bearing

8 production numbers CEVERS49-60, and marked at the Evers deposition as “Plaintiffs’ Exhibit
9 21.” Exhibit 15 was produced by third-party Connie Evers, and designated by Evers as
10 “CONFIDENTIAL.” Accordingly, Exhibit 15 is being filed under seal.
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16.

Attached hereto as Exhibit 16 is a true and correct copy of a document titled

12 “Nutella Recommended Opinion Leaders for Industry Briefings,” bearing production numbers
13 CEVERS117-21, which was produced by third-party Connie Evers, and designated by Evers as
14 “CONFIDENTIAL.” Accordingly, Exhibit 16 is being filed under seal.
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17.

Attached hereto as Exhibit 17 is a true and correct copy of an email chain bearing

16 production numbers CEVERS103-110, and marked at the Evers deposition as “Plaintiffs’ Exhibit
17 35.” Exhibit 17 was produced by third-party Connie Evers, and designated by Evers as
18 “CONFIDENTIAL.” Accordingly, Exhibit 17 is being filed under seal.
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18.

Attached hereto as Exhibit 18 is a true and correct copy of an email chain bearing

20 production number CEVERS185, which was produced by third-party Connie Evers, and
21 designated by Evers as “CONFIDENTIAL.” Accordingly, Exhibit 18 is being filed under seal.
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19.

Attached hereto as Exhibit 19 is a true and correct copy of an email chain bearing

23 production numbers CEVERS1068-70, which was produced by third-party Connie Evers, and
24 designated by Evers as “CONFIDENTIAL.” Accordingly, Exhibit 19 is being filed under seal.
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In Re Ferrero Litigation, Case No. 3:11-cv-00205 H (CAB)
DECLARATION OF GREGORY S. WESTON

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20.

Attached hereto as Exhibit 20 is a true and correct copy of an email chain bearing

2 production numbers CEVERS1155-57, which was produced by third-party Connie Evers, and
3 designated by Evers as “CONFIDENTIAL.” Accordingly, Exhibit 20 is being filed under seal.
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21.

Attached hereto as Exhibit 21 is a true and correct copy of an email chain bearing

5 production number CEVERS1045, and marked at the Evers deposition as “Plaintiffs’ Exhibit
6 48.” Exhibit 21 was produced by third-party Connie Evers, and designated by Evers as
7 “CONFIDENTIAL.” Accordingly, Exhibit 21 is being filed under seal.
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22.

Attached hereto as Exhibit 22 is a true and correct copy of an email chain bearing

9 production numbers CEVERS1028-31, and marked at the Evers deposition as “Plaintiffs’ Exhibit
10 44.” Exhibit 22 was produced by third-party Connie Evers, and designated by Evers as
11 “CONFIDENTIAL.” Accordingly, Exhibit 22 is being filed under seal.
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23.

Attached hereto as Exhibit 23 is a true and correct copy of an email chain bearing

13 production numbers CEVERS278-87, and marked at the Evers deposition as “Plaintiffs’ Exhibit
14 63.” Exhibit 23 was produced by third-party Connie Evers, and designated by Evers as
15 “CONFIDENTIAL.” Accordingly, Exhibit 23 is being filed under seal.
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24.

Attached hereto as Exhibit 24 is a true and correct copy of an email chain bearing

17 production numbers CEVERS537-41, and marked at the Evers deposition as “Plaintiffs’ Exhibit
18 52.” Exhibit 24 was produced by third-party Connie Evers, and designated by Evers as
19 “CONFIDENTIAL.” Accordingly, Exhibit 24 is being filed under seal.
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25.

Attached hereto as Exhibit 25 is a true and correct copy of an email chain bearing

21 production numbers CEVERS271-77, and marked at the Evers deposition as “Plaintiffs’ Exhibit
22 77.” Exhibit 25 was produced by third-party Connie Evers, and designated by Evers as
23 “CONFIDENTIAL.” Accordingly, Exhibit 25 is being filed under seal.
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26.

Attached hereto as Exhibit 26 is a true and correct copy of an email bearing

25 production number CEVERS595, which was produced by third-party Connie Evers, and
26 designated by Evers as “CONFIDENTIAL.” Accordingly, Exhibit 26 is being filed under seal.
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In Re Ferrero Litigation, Case No. 3:11-cv-00205 H (CAB)
DECLARATION OF GREGORY S. WESTON

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27.

Attached hereto as Exhibit 27 is a true and correct copy of an email chain bearing

2 production numbers CEVERS1114-15, and marked at the Evers deposition as “Plaintiffs’ Exhibit
3 79.” Exhibit 27 was produced by third-party Connie Evers, and designated by Evers as
4 “CONFIDENTIAL.” Accordingly, Exhibit 27 is being filed under seal.
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28.

Attached hereto as Exhibit 28 is a true and correct copy of an email chain bearing

6 production number CEVERS974, and marked at the Evers deposition as “Plaintiffs’ Exhibit 56.”
7 Exhibit 28 was produced by third-party Connie Evers, and designated by Evers as
8 “CONFIDENTIAL.” Accordingly, Exhibit 28 is being filed under seal.
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29.

Attached hereto as Exhibit 29 is a true and correct copy of an email chain bearing

10 production number CEVERS973, and marked at the Evers deposition as “Plaintiffs’ Exhibit 57.”
11 Exhibit 29 was produced by third-party Connie Evers, and designated by Evers as
12 “CONFIDENTIAL.” Accordingly, Exhibit 29 is being filed under seal.
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30.

Attached hereto as Exhibit 30 is a true and correct copy of an email chain bearing

14 production numbers CEVERS5-7, and marked at the Evers deposition as “Plaintiffs’ Exhibit 18.”
15 Exhibit 30 was produced by third-party Connie Evers, and designated by Evers as
16 “CONFIDENTIAL.” Accordingly, Exhibit 30 is being filed under seal.
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31.

Attached hereto as Exhibit 31 is a true and correct copy of an email chain bearing

18 production number CEVERS265, which was produced by third-party Connie Evers, and
19 designated by Evers as “CONFIDENTIAL.” Accordingly, Exhibit 31 is being filed under seal.
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32.

Attached hereto as Exhibit 32 is a true and correct copy of a draft Spokesperson

21 Agreement, dated October 12, 2009, bearing production numbers CEVERS38-42, which was
22 produced by third-party Connie Evers, and designated by Evers as “CONFIDENTIAL.”
23 Accordingly, Exhibit 32 is being filed under seal.
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33.

Attached hereto as Exhibit 33 is a true and correct copy of a document titled

25 “NUT SPREADS PANEL KPI SUMMARY – ENDING 12/26/10,” bearing production numbers
26 FERRERO21-22, and marked at the Kreilmann deposition as “Plaintiff’s Exhibit 17.” Exhibit 33
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In Re Ferrero Litigation, Case No. 3:11-cv-00205 H (CAB)
DECLARATION OF GREGORY S. WESTON

1 is designated by Ferrero as “CONFIDENTIAL.” Accordingly, Exhibit 33 is being filed under
2 seal.
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34.

Attached hereto as Exhibit 34 is a true and correct copy of excerpts from the

4 deposition of Bernard F. Kreilmann, dated April 14, 2011 and designated by Ferrero as
5 “CONFIDENTIAL.” Accordingly, Exhibit 34 is being filed under seal.
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PART II

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EXPERIENCE AND QUALIFICATIONS OF GREGORY S. WESTON AND THE

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WESTON FIRM

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35.

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

10 the United States District Courts for the Northern, Central and Southern Districts of California. I
11 make this Declaration in support of Plaintiff’s Motion for Class Certification and Appointment
12 of Class Counsel.
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36.

I am a graduate of Ohio State University and Harvard Law School and have

14 always devoted all or substantially all of my practice to representing plaintiffs in class actions.
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37.

On June 14, 2011, the Honorable Richard Seeborg appointed the Weston Firm,

16 together with the Law Offices of Ronald A. Marron, Interim Class Counsel, in a contested
17 proceeding. See Chacanaca v. Quaker Oats Co., 2011 U.S. Dist. LEXIS 65023, at *8-9 (N.D.
18 Cal. June 14, 2011) (“There is no question here that both the Weston/Marron counsel . . . have
19 ample experience handling class actions and complex litigation. It is also clear that both have
20 particular familiarity with suits involving issues of mislabeling in the food industry.”).
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38.

Additionally, the Weston Firm was recently appointed Class Counsel in the matter

22 of Red et al. v. Unilever United States et al., No. CV 10-0387 JW (N.D. Cal.), an action
23 challenging the labeling of Unilever margarine products containing trans fat. Judge Ware
24 recently granted final approval to a nationwide class settlement that requires Unilever to remove
25 all trans fat from its entire margarine portfolio, including Imperial, Brummel & Brown, I Can’t
26 Believe It’s Not Butter! and numerous generic and regional brands.
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In Re Ferrero Litigation, Case No. 3:11-cv-00205 H (CAB)
DECLARATION OF GREGORY S. WESTON

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39.

Moreover, the Weston Firm was appointed Interim Class Counsel, together with

2 Lieff Cabraser, to represent purchases of Apple iPad 3Gs in an action alleging a “bait and
3 switch” scheme concerning the promise by Apple and AT&T Mobility of an unlimited 3G data
4 plan, in In re Apple and AT&T iPad Unlimited Data Plan Litig., Case No. 10-02553 RMW (N.D.
5 Cal.) (Dkt. No. 79).
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40.

The Weston Firm was also appointed sole Class Counsel to represent purchasers

7 of approximately 145 condominiums in Adachi et al. v. Carlyle/Galaxy San Pedro L.P. et al.,
8 No. 09-793 (C.D. Cal.), which settled in 2009 on a class-wide all-cash basis for approximately
9 $1.35 million.
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41.

Before founding the Weston Firm, as an attorney at the firm now called Robbins,

11 Geller, Rudman & Dowd (“RGR&D”), I represented plaintiffs in the following class actions:
• The Apple iPod iTunes Antitrust Litigation (N.D. Cal.) (nationwide consumer class
certified and RGR&D appointed class counsel)

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• Bruce v. Crompton Corp. (Los Angeles County Super. Ct.)
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• In re Carbon Black Antitrust Litigation (D. Mass.)

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• In re Digital Music Antitrust Litigation (S.D.N.Y.) (RGR&D appointed interim
class counsel)

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• In re Graphics Processing Units Antitrust Litigation (N.D. Cal.)

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• In re International Air Transportation Surcharge Antitrust Litigation (N.D. Cal.)

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• In re Medical Waste Services Antitrust Litigation (D. Utah) (RGR&D appointed
interim class counsel)

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• Ross et al. v. Metropolitan Life Insurance Company (W.D. Pa.)

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• Williams v. Interinsurance Exchange of the Automobile Club (San Diego County
Super. Ct.) (California consumer class certified, RGR&D appointed class counsel)

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42.

This year my firm has obtained a number of favorable decisions in several actions

25 challenging “health and wellness” labeling of foods made with unhealthy ingredients, like trans
26 fat, including a recent decision denying Defendant Kraft Foods’ motion to dismiss the Second
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In Re Ferrero Litigation, Case No. 3:11-cv-00205 H (CAB)
DECLARATION OF GREGORY S. WESTON

1 Amended Complaint in Red et al. v. Kraft Foods, Inc., et al., 2010 U.S. Dist. LEXIS 122849
2 (C.D. Cal. Nov. 18, 2010).
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43.

In Yumul v. Smart Balance, Inc. 733 F. Supp. 2d 1117 (C.D. Cal. 2010) and

4 Yumul v. Smart Balance, Inc. 2010 U.S. Dist. LEXIS 116960 (C.D. Cal. Oct. 8, 2010), the Court
5 denied a motion to dismiss a complaint challenging the labeling of margarine containing trans
6 fat, holding that plaintiff had adequately alleged deception. The Court further denied the
7 defendant’s challenge to a class period extending back ten years, holding the complaint
8 adequately alleged tolling of the statute under the delayed discovery rule.
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44.

In a 40-page Tentative Order dated July 25, 2011, the Honorable Margaret M.

10 Morrow also certified a nationwide class of purchasers of Nucoa Real Margarine beginning
11 January 1, 2000 and extending through class notice (i.e., an 11+ year class), in the matter of
12 Yumul v. Smart Balance, Inc., No. 10-927 (C.D. Cal.). Judge Morrow also tentatively appointed
13 the Weston Firm Class Counsel. Although the Order has not yet been finalized, we expect the
14 Court will follow its tentative ruling, and expect to cite the decision in Plaintiffs’ upcoming
15 Reply in Support of Class Certification.
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45.

In Chacanaca v. The Quaker Oats Co., 752 F. Supp. 1111 (N.D. Cal. 2010), the

17 Honorable Richard Seeborg found certain health claims on Quaker Oats granola bar products
18 containing trans fat actionable under California’s UCL, FAL and CLRA.
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46.

In Henderson v. J.M. Smucker Co., 2011 U.S. Dist. LEXIS 27953 (C.D. Cal. Mar.

20 17, 2011), the Honorable George H. King largely denied a defendant’s motion to dismiss claims
21 that it’s Crisco vegetable shortening and other packaged foods contained misleading health
22 claims in light of the products’ trans fat content.
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47.

In Henderson v. Gruma Corp., 2011 U.S. Dist. LEXIS 41077 (C.D. Cal. Apr. 11,

24 2011), the Honorable A. Howard Matz held claims that representations on Guacamole and Bean
25 Dip containing trans fat were actionable under the UCL, FAL and CLRA.
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In Re Ferrero Litigation, Case No. 3:11-cv-00205 H (CAB)
DECLARATION OF GREGORY S. WESTON

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48.

In addition to these decisions, the Weston Firm recently obtained a favorable

2 decision on behalf of a putative consumer class from this Court in Peviani v. Natural Balance,
3 Inc., 2011 U.S. Dist. LEXIS 18110 (S.D. Cal. Feb. 24, 2011), denying in full a defendant’s
4 motion to dismiss an action challenging the advertising and sale of a “natural herbal” dietary
5 supplement drug that makes false and deceptive claims about its effectiveness as an aphrodisiac
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49.

The Weston Firm is also counsel for a proposed class of deaf and hard-of-hearing

7 consumers in an action alleging violations of the Americans with Disabilities Act, false
8 advertising, and unlawful business practices, against Netflix, Inc., in an action styled Cullen v.
9 Netflix, Inc., No. 11-cv-1199-HRL (N.D. Cal.).
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50.

In sum, the Weston Firm has dedicated substantial resources and efforts to

11 prosecuting consumer fraud similar to those in this case, especially against food manufacturers
12 who deceivingly label products containing toxic artificial trans fat in a manner that implies the
13 products are nevertheless healthy, and against companies that engage in unlawful or unfair
14 business practices. This provides the Weston Firm with the benefits of expertise in the subject
15 area and economies of scale that will benefit the Class.
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51.

My firm and I are fully committed to prosecuting this action against Ferrero, Inc.

17 to achieve a successful outcome for the Class, and have the means and resources to do so.
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I declare under penalty of perjury of the laws of the United States that the foregoing is

20 true and correct.
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Executed on August 1, 2011, in San Diego, California.
/s/ Gregory S. Weston
Gregory S. Weston

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In Re Ferrero Litigation, Case No. 3:11-cv-00205 H (CAB)
DECLARATION OF GREGORY S. WESTON

1 DATED: August 1, 2011

Respectfully Submitted,

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/s/Jack Fitzgerald
Jack Fitzgerald

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THE WESTON FIRM
GREGORY S. WESTON
JACK FITZGERALD
MELANIE PERSINGER
888 Turquoise Street
San Diego, CA 92109
Telephone:
858 488 1672
Facsimile:
480 247 4553
LAW OFFICES OF RONALD
MARRON, APLC
RONALD A. MARRON
3636 4th Street, Suite 202
San Diego, CA 92103
Telephone:
619 696 9066
Facsimile:
619 564 6665

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Interim Class Counsel

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In Re Ferrero Litigation, Case No. 3:11-cv-00205 H (CAB)
DECLARATION OF GREGORY S. WESTON

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