Hohenberg v. Ferrero USA, Inc

Filing 76

RESPONSE in Opposition re 51 MOTION for Class Certification filed by Ferrero USA, Inc. (Attachments: # 1 Declaration Bernard Kreilmann, # 2 Declaration Karl Krohn, # 3 Declaration Amir Steinhart, # 4 Exhibit 1-Steinhart Declaration, # 5 Exhibit 2-Steinhart Declaration, # 6 Exhibit 3-Steinhart Declaration, # 7 Exhibit 4-Steinhart Declaration, # 8 Exhibit 5-Steinhart Declaration, # 9 Exhibit 6-Steinhart Declaration, # 10 Proof of Service)(Eggleton, Keith) (ag).

EXHIBIT 3

Case 3:11-cv-01086-FLW -DEA Document 50

Filed 09/26/11 Page 1 of 20 PageID: 681

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

IN RE:
NUTELLA MARKETING AND
SALES PRACTICES LITIGATION

:
:
:
:
:
:
:
:
:
:
:
:
:

Case No. 11-1086 (FLW) (DEA)
Hon. Freda L. Wolfson, U.S.D.J.
Hon. Douglas E. Arpert, U.S.M.J.
Motion Day: October 3, 2011
DOCUMENT FILED
ELECTRONICALLY

SUPPLEMENTAL REPLY BRIEF IN SUPPORT OF CALIFORNIA
PLAINTIFFS’ MOTION TO INTERVENE
STERNS & WEINROTH,
A Professional Corporation
50 West State Street, Suite 1400
Trenton, New Jersey 08607-1298
Telephone: [phone]
Facsimile: [phone]
Attorneys for Plaintiffs-Intervenors

Case 3:11-cv-01086-FLW -DEA Document 50

Filed 09/26/11 Page 2 of 20 PageID: 682

TABLE OF CONTENTS

TABLE OF AUTHORITIES .................................................................................ii
INTRODUCTION ................................................................................................. 1
ARGUMENT ......................................................................................................... 2
I.

The First-Filed Rule Applies to the Copycat New Jersey
Action because it is “Substantially Similar” and the Putative
Classes Overlap, Despite Differences in Named Plaintiffs and
State Law Claims Asserted ............................................................... 2

II.

The California Plaintiffs’ Request to Certify a Nationwide
Class does not Preclude Application of the First-Filed Rule ............ 7

III.

Any “Bad Faith” is on the Part of the Glover Plaintiffs.................... 8
A.

Mediation ................................................................................ 9

B.

Discovery .............................................................................. 11

C.

Patrick ................................................................................... 14

D.

The Glover Plaintiffs’ Accusations of “Bad Faith” Do
Not Provide an Exception Justifying Departure from
the First-Filed Rule ............................................................... 15

CONCLUSION .................................................................................................... 15

i

Case 3:11-cv-01086-FLW -DEA Document 50

Filed 09/26/11 Page 3 of 20 PageID: 683

TABLE OF AUTHORITIES
Cases
Alvarez v. Gold Belt, LLC,
2011 U.S. Dist. LEXIS 38034 (D.N.J. Apr. 7, 2011) ............................................3
Castaneda v. Burger King Corp.,
2009 U.S. Dist. LEXIS 99084 (N.D. Cal. Sept. 25, 2009) ....................................8
Catanese v. Unilever,
774 F. Supp. 2d 684 (D.N.J. 2011) ....................................................................3, 5
Chick Kam Choo v. Exxon Corp., 486 U.S. 140 (1988) ............................................5
Clean Harbors, Inc. v. ACSTAR Ins. Co.,
2010 U.S. Dist. LEXIS 46582 (D.N.J. May 12, 2010) ..........................................8
Cretson Elecs., Inc. v. Lutron Elecs. Co.,
2010 U.S. Dist. LEXIS 78109 (D.N.J. Aug. 2, 2010) ...........................................3
Crosley Corp. v. Westingonhouse Electric & Mfg. Co.,
130 F.2d 474 (3d Cir. 1942).................................................................................15
EEOC v. Univ. of Pennsylvania, 850 F.2d 969 (3d Cir. 1988)............................1, 15
Gardner v. GC Servs., LP,
2010 U.S. Dist. LEXIS 67912 (S.D. Cal. July 6, 2010) ........................................4
Hohider v. United Parcel Serv., Inc., 574 F.3d 168 (3d Cir. 2009) ..........................6
Hyland v. Harrison, 2006 U.S. Dist. LEXIS 5744 (D. Del. Feb. 7, 2006) .............11
In re Ferrero Litig., 768 F. Supp. 1074 (S.D. Cal. 2011)..........................................1
In re Gen. Motors Corp. Pick-Up Truck Fuel Tank Prods. Liab. Litig.,
134 F.3d 133 (3d Cir. 1998)...................................................................................5
In re Nutella Mktg. & Sales Practices Litig.,
2011 U.S. Dist. LEXIS 92669 (J.P.M.L. 2011) .....................................................1
ii

Case 3:11-cv-01086-FLW -DEA Document 50

Filed 09/26/11 Page 4 of 20 PageID: 684

Johansson v. Cent. Garden & Pet Co.,
2011 U.S. Dist. LEXIS 56463 (D.N.J. May 26, 2011) ..........................................7
Medlock v. HMS Host USA, Inc.,
2010 U.S. Dist. LEXIS 133143 (E.D. Cal. Dec. 15, 2010) ...................................4
Smith v. Bayer Corp., 131 S. Ct. 2368 (2011) .......................................................4, 5
Tatum v. Chrysler Group LLC,
2011 U.S. Dist. LEXIS 32362 (D.N.J. Mar. 28, 2011)..........................................7
Taylor v. Sturgell, 553 U.S. 880 (2008).....................................................................5

Statutes
28 U.S.C. § 2283 ........................................................................................................4

iii

Case 3:11-cv-01086-FLW -DEA Document 50

Filed 09/26/11 Page 5 of 20 PageID: 685

INTRODUCTION
The Glover Plaintiffs’ argument that the Court should not apply the first-filed
rule because New Jersey is the “most appropriate forum,” see Suppl. Opp., Dkt. No.
48 at 2, is directly at odds with the prior decisions of two federal courts, one by the
Southern District of California’s former Chief Judge, the Honorable Marilyn L. Huff,
denying Ferrero’s request to transfer the action to New Jersey pursuant to 28 U.S.C.
§ 1404(a), 1 the other by a panel of five federal judges denying Glover’s request to
transfer the action to New Jersey pursuant to § 1407.2 In effect, the Glover Plaintiffs
ask that the Court substitute their idea of the best forum for principles of federal
comity. But the Third Circuit requires district courts to apply the first-filed rule and
defer to earlier-filed actions in “all cases” of concurrent jurisdiction, unless an
exception applies. See EEOC v. Univ. of Pennsylvania, 850 F.2d 969, 971 (3d Cir.
1988).
The Glover Parties’ alternative argument, that minor differences between the
actions mean they are not “truly duplicative” so that the first-filed rule does not
1

In re Ferrero Litig., 768 F. Supp. 1074 (S.D. Cal. 2011).

2

In re Nutella Mktg. & Sales Practices Litig., 2011 U.S. Dist. LEXIS 92669
(J.P.M.L. 2011) (decision by the Hon. John G. Heyburn II (W.D. Ky.), the Hon.
Chief Judge Kathryn H. Vratil (D. Kan.), the Hon. Frank C. Damrell, Jr. (E.D. Cal.),
the Hon. W. Royal Furgeson, Jr. (W.D. Tx.), and the Hon. Barbara S. Jones
(S.D.N.Y.)). Moreover, the Panel did not “find[] that these actions could proceed in
separate District Courts,” Suppl. Opp. at 3, but held that “deference among the courts
should minimize the possibility of duplicative discovery and inconsistent pretrial
rulings,” see Suppl. R. at 21 (quoting In re: Nutella Mktg. & Sales Practices Litig.,
2011 U.S. Dist. LEXIS 92669, at *2 (J.P.M.L. Aug. 16, 2011) (emphasis added)).
1

Case 3:11-cv-01086-FLW -DEA Document 50

Filed 09/26/11 Page 6 of 20 PageID: 686

apply, has already been addressed, 3 and remains wrong because the subject matter of
the two actions is “substantially similar.” See infra Point I. Moreover, Judge Walls’
decision in Catanese was not abrogated by the Supreme Court’s decision in Smith v.
Bayer, which dealt with substantive issue preclusion, not comity. Aware of EEOC’s
mandate, the Glover Plaintiffs alternatively argue that the California Plaintiffs’
request for a nationwide class, and their supposed “bad faith,” constitute exceptions
to the first-filed rule. They are wrong on both counts, since the request for a
nationwide class is neither a legal nor practical bar to application of the first-filed
rule, see infra Point II, and since the “bad faith” exception focuses on the motivation
for bringing the second-filed action, not the supposed content of inter-counsel
communications during the course of litigation, and the Glover Plaintiffs
misrepresent the record. See infra Point III.
ARGUMENT
I.

The First-Filed Rule Applies to the Copycat New Jersey Action because it
is “Substantially Similar” and the Putative Classes Overlap, Despite
Differences in Named Plaintiffs and State Law Claims Asserted
The Glover Plaintiffs assert that the first-filed rule does not apply to the two

actions challenging identical Nutella advertising because the “parties and claims”
supposedly “differ” in that: (a) the actions are brought under different state consumer
protection laws; (b) one asserts an additional theory of why Ferrero’s advertising was
deceptive; and (c) while both complaints “focus” on Nutella’s label, they supposedly
3

See Reply, Dkt. No. 32 at 9-11.
2

Case 3:11-cv-01086-FLW -DEA Document 50

Filed 09/26/11 Page 7 of 20 PageID: 687

also focus on different other examples of the same “nutrition breakfast food for
children” multimedia advertising campaign. 4 See Suppl. Opp. at 6-7, 11.
The Glover Plaintiffs are wrong. In Catanese, Judge Walls applied the firstfiled rule to dismiss a copycat class action brought under New Jersey law in favor of
a first-filed action brought under California law because “the most important
consideration in a first-filed rule analysis is overlapping subject matter. . . . A plain
reading of . . . EEOC strongly suggests that whether the cases share subject matter is
more important than the absolute identity of the parties.” Catanese v. Unilever, 774 F.
Supp. 2d 684, 687-88 (D.N.J. 2011) (transferring action brought under New Jersey
law to district where action brought under California law was pending); see also
Alvarez v. Gold Belt, LLC, 2011 U.S. Dist. LEXIS 38034 (D.N.J. Apr. 7, 2011)
(deferring to first-filed class action where cases were “essentially identical” 5).
Specifically, the Glover Plaintiffs argue, contrary to Judge Walls’ decision in
Catanese, that because the proposed lead plaintiffs in the California and New Jersey
actions are different, the first-filed rule cannot apply. Suppl. Opp. at 7-8. But while
the parties in two actions must be similar, the “parties involved . . . need not be
identical.” Cretson Elecs., Inc. v. Lutron Elecs. Co., 2010 U.S. Dist. LEXIS 78109, at
*5 (D.N.J. Aug. 2, 2010); see also Medlock v. HMS Host USA, Inc., 2010 U.S. Dist.
4

This is not even true. See, e.g., In re Ferrero First Am. Consolidated Compl. ¶¶ 9096 (discussing television commercials).
5
Here, 29 paragraphs of Glover’s complaint were copied verbatim from the earlier In
re Ferrero Complaint. See Suppl. Mem., Dkt. No. 42-1 at 13-14.
3

Case 3:11-cv-01086-FLW -DEA Document 50

Filed 09/26/11 Page 8 of 20 PageID: 688

LEXIS 133143, at *9-10 (E.D. Cal. Dec. 15, 2010) (“[E]xact identity of parties is not
required to satisfy the first-to-file rule. The rule is satisfied if some [of] the parties in
one matter are also the same in the other matter, regardless of whether there are
additional unmatched parties in one or both matters.” (internal quotation omitted));
accord Gardner v. GC Servs., LP, 2010 U.S. Dist. LEXIS 67912, at *13 (S.D. Cal.
July 6, 2010) (Explaining that the first-file rule “only requires the parties be
‘substantially similar,’” and declining to apply first-to-file rule where, “[a]s for the
putative classes, there is no overlap at all, much less ‘substantial overlap.’”)
Nevertheless, the Glover Plaintiffs assert that Catanese has been abrogated by
Smith v. Bayer Corp., 131 S. Ct. 2368 (2011) (“Bayer”). See Suppl. Opp. at 8-9, 1213. But the decision in Bayer has nothing to do with application of the first-filed rule
as an exercise of comity between federal courts of equal rank. Instead, Bayer
concerned the power of a federal court under the Anti-Injunction Act, 28 U.S.C. §
2283, to enjoin subsequent litigation in state court against a defendant on the basis
that the class claims asserted in the subsequent state action were issue-precluded by
the federal court’s decision denying class certification. See 131 S.Ct. at 2373, 2376
n.7 (“we rest our decision on the Anti-Injunction Act and the principles of issue
preclusion that inform it”).
The Bayer Court held that a state court putative class action plaintiff could not
suffer claim preclusion—that is, be substantively bound on the merits—by a United

4

Case 3:11-cv-01086-FLW -DEA Document 50

Filed 09/26/11 Page 9 of 20 PageID: 689

States District Court order denying certification of the same class. See 131 S. Ct. at
2373. It did not hold that federal district courts should not exercise principles of
judicial comity and efficiency to abstain from hearing a duplicative class action
where an earlier-filed action on behalf of the same putative class is pending
elsewhere. Moreover, Bayer did not announce a new rule at all, see, e.g., Suppl. Opp.
at 9 (citing Taylor v. Sturgell, 553 U.S. 880, 901 (2008)),6 and accordingly could not
have abrogated Catanese. Indeed, in noting that proposed named plaintiffs in the New
Jersey action could “re-file if . . . the [first-filed] action is dismissed on procedural
grounds,” Catanese, 774 F. Supp. 2d at 691, Judge Walls undermined the Glover
Plaintiffs’ argument that the application of the first-filed rule is similar to application
of issue preclusion in Bayer.
The Glover Plaintiffs also attempt to distinguish Catanese on two other
unavailing grounds, that the first-filed motion there was brought by the defendant,
and that Judge Walls transferred the action, rather than dismissing it. See Suppl. Opp.
at 12-13. First, the principles of comity and efficiency underlying the first-filed rule
do not vary by the party seeking its application. See generally Suppl. Mem. at 22-26.
Moreover, while asking that the Court hold off on deciding a “comity motion [until]

6

Accord Bayer, 131 S.Ct. at 2375 n.4 (citing In re Gen. Motors Corp. Pick-Up Truck
Fuel Tank Prods. Liab. Litig., 134 F.3d 133, 141 (3d Cir. 1998) (holding that putative
“class members are not parties” and so cannot be bound by a court’s ruling when
“there is no class pending”)); id. at 2379 (“This case . . . is little more than a rerun of
Chick Kam Choo [v. Exxon Corp., 486 U.S. 140 (1988)].”).
5

Case 3:11-cv-01086-FLW -DEA Document 50

Filed 09/26/11 Page 10 of 20 PageID: 690

after additional developments in the cases” (or “at a later time,” id. at 4—Ferrero
never says when it believes the Court should apply comity principles or why it should
wait to do so), Ferrero admits it “might itself seek relief (in either this Court or the
California court) to avoid duplicative litigation and conflicting decisions affecting the
class.” Ferrero Resp., Dkt. No. 47 at 2. Similarly, Ferrero’s assertion that its pending
Rule 12 motion presents no potential conflicts with In re Ferrero, id. at 3-4, is selfserving and untrue, since Ferrero’s pending motion now effectively seeks a review of
many issues that Judge Huff already decided. Second, the California Plaintiffs always
sought alternative relief of stay, see, e.g., Mot., Dkt. No. 21-1 at 1, and now that the
JPML has denied the motion for centralization, the California Plaintiffs are also open
to transfer, as they discuss (not “merely allude to,” Suppl. Opp. at 13). See Suppl.
Mem. at 18.
Alternatively, the Glover Plaintiffs argue that the cases are not “truly
duplicative” because the “substantive elements” of the California and New Jersey
state law claims at issue differ. See Suppl. Op. at 11 (citing Hohider v. United Parcel
Serv., Inc., 574 F.3d 168, 196-97 (3d Cir. 2009), for proposition that “[i]t is the
substantive elements of a statutory claim that inform the contours of a F.R.C.P. Rule
23 class”). However, many courts have recognized the similarity of the “substantive
elements” of the New Jersey Consumer Fraud Act and California’s Unfair
Competition Law and CLRA. See Johansson v. Cent. Garden & Pet Co., 2011 U.S.

6

Case 3:11-cv-01086-FLW -DEA Document 50

Filed 09/26/11 Page 11 of 20 PageID: 691

Dist. LEXIS 56463, at *10 (D.N.J. May 26, 2011) (“Plaintiffs’ causes of action under
the UCL and CLRA are similar to the causes of action provided under the
[NJCFA].”); Tatum v. Chrysler Group LLC, 2011 U.S. Dist. LEXIS 32362, at *2
(D.N.J. Mar. 28, 2011) (NJCFA and UCL are “comparable” statutes). Accordingly,
the Glover Plaintiffs are wrong when they assert that certification of a nationwide
class in In re Ferrero would not preclude certification of a nationwide class in this
case.
II.

The California Plaintiffs’ Request to Certify a Nationwide Class does not
Preclude Application of the First-Filed Rule
The argument that the Court should refrain from applying the first-filed rule

because it will supposedly be impossible for the California Plaintiffs to obtain
certification of a nationwide class, see, e.g., Suppl. Opp. at 8, under California law is
simply wrong. In fact, the California Interim Class Counsel just obtained, in a
tentative order, 7 certification of a nationwide California class against a New Jersey
defendant. See concurrently-filed Supplemental Reply Declaration of Gregory S.
Weston (“Weston Decl.”) ¶ 1 & Ex. A at 37-40. To the extent there is some question
of a nationwide class, however, the remedy may be accordingly tailored. See Suppl.
7

We did not attach the tentative order in Yumul to our Supplemental Memorandum
because we hoped by the time we filed this Reply there would be a final order to cite.
We acknowledge, of course, that this is only a tentative order, though we have every
expectation it will be maintained, and it illustrates our underlying point, that
California state claims may apply to a nationwide class where a New Jersey
defendant has requisite contacts, like Ferrero.
7

Case 3:11-cv-01086-FLW -DEA Document 50

Filed 09/26/11 Page 12 of 20 PageID: 692

Mem. at 18. “In deciding whether to dismiss, stay, or transfer an action, a court can
look at whether the first-filed action is vulnerable to dismissal on jurisdictional
grounds, and if so, the court should stay or transfer the second action rather than
dismiss it.” Clean Harbors, Inc. v. ACSTAR Ins. Co., 2010 U.S. Dist. LEXIS 46582,
at *18 (D.N.J. May 12, 2010).
III.

Any “Bad Faith” is on the Part of the Glover Plaintiffs
Alabama plaintiff Marnie Glover copied a quarter of her Complaint from the

first-filed Hohenberg Complaint, then, after shopping her case to a larger firm, filed
in New Jersey seeking to take advantage of Ms. Hohenberg’s choice to bring suit
where she lived and was injured. Glover then immediately filed an MDL motion to
transfer the first-filed case to New Jersey, even while Ferrero’s motion seeking
identical relief was already pending before Judge Huff. Two days before the hearing
on Glover’s MDL motion, Jayme Kaczmarek filed her complaint, then shortly
thereafter moved by letter application to Magistrate Judge Arpert, together with
Glover’s counsel, to be appointed interim counsel, including submitting a proposed
order giving counsel “sole authority” to negotiate settlement with Ferrero on behalf of
the same putative class over which California Plaintiffs’ counsel was appointed
Interim Class Counsel long ago. As a result, the New Jersey action is now being
manned by six firms spread across the country. Accord Castaneda v. Burger King
Corp., 2009 U.S. Dist. LEXIS 99084, at *50 (N.D. Cal. Sept. 25, 2009) (in class

8

Case 3:11-cv-01086-FLW -DEA Document 50

Filed 09/26/11 Page 13 of 20 PageID: 693

action, overall number of timekeepers should be kept to a small, efficient core group
of lawyers). Thus, it is not the California Plaintiffs, but the Glover Plaintiffs who
have attempted to “wrest control over all claims of Nutella purchasers,” Suppl. Opp.
at 19. Their other accusations of “bad faith” also fall flat.
A.

Mediation

The Glover Plaintiffs point to circumstances surrounding mediation as a
supposed example of the California Plaintiffs’ “bad faith.” See Suppl. Opp. at 19-20;
Guglielmo Decl. ¶¶ 1-10. But the story they tell is misleading.
On July 13, the California Plaintiffs, Glover, and Ferrero agreed they would
mediate together, in San Diego, on August 31, with the hopes that the resolution of
Glover’s MDL motion being heard on July 28 would inform those discussions. See
Weston Decl. ¶ 4 & Exs. C.8 But on July 26, just two days before the JPML was to
hear Ms. Glover’s argument that the first-filed California cases should be centralized
in New Jersey, Kaczmarek filed her Complaint, using the same template as Glover,9
who then argued at the July 28 hearing that the Kaczmarek filing bolstered the case
for centralization in New Jersey. 10

8

The Glover Plaintiffs claim that an agreement to mediate was reached on June 20.
Guglielmo Decl. ¶ 3. This is not true, as shown in the parties’ actual communications.
See Weston Decl. at ¶ 3 & Ex. B.

9

See Suppl. Mem. at 20.

10

Following the Panel’s denial, before Kaczmarek served her complaint, her and
Glover’s counsel requested in a letter that Judge Arpert appoint them interim class
9

Case 3:11-cv-01086-FLW -DEA Document 50

Filed 09/26/11 Page 14 of 20 PageID: 694

Just four days after the MDL hearing, despite their earlier agreement, Glover’s
counsel cancelled the mediation. According to Glover, although Mr. Guglielmo, Ms.
Skonick, and Mr. Davis—who are spearheading the New Jersey litigation for Glover
on behalf of three different law firms—were available on the date and in the location
agreed, Mr. Burke apparently had obligations in San Francisco the day before and the
day after the mediation, but not on August 31. Glover therefore requested that all the
parties and the San Diego-based mediator travel to San Francisco to accommodate
Mr. Burke, rather than proceeding with him available by phone or taking one of the
many available daily commuter flights between San Francisco and San Diego. See
Weston Decl. ¶ 5 & Exs. D-E.
By the time Mr. Burke finally agreed on August 10 that he could, in fact, be in
San Diego to mediate on August 31, Judge Papas was no longer available. Id. ¶ 6 &
Ex. F. The Glover Plaintiffs claim that, following these machinations, “the California
Plaintiffs[] again inexplicably refused to participate in mediation.” Suppl. Opp. at 20
(citing Gulglielmo Decl. ¶ 8). Again, that is not true. The California Plaintiffs
informed Ferrero that they were unavailable on September 2, and Ferrero requested
that the plaintiffs propose alternative mediators or locations for August 31, which

counsel. Moreover, the letter did not make Judge Arpert aware of the pending
California action in which Interim Class Counsel had already been appointed. See
Dkt. No. 39.
10

Case 3:11-cv-01086-FLW -DEA Document 50

Filed 09/26/11 Page 15 of 20 PageID: 695

neither California Plaintiffs nor New Jersey Plaintiffs have yet done. See Weston
Decl. ¶ 6 & Ex. F.
In sum, because of gamesmanship surrounding the venue, and despite the
California Plaintiffs’ attempts to be inclusive of Glover in settlement proceedings,
mediation has stalled. Significantly, none of this is at the hands of California
Plaintiffs, who have been the targets of multiple motions, and have only intervened in
this action to prevent the New Jersey action from prejudicing their case, which is a
wholly proper purpose for intervening.11
B.

Discovery

The Glover Plaintiffs assert that they “have made every attempt to coordinate
depositions with the California Plaintiffs,” who have supposedly “refused to
reasonably share or split time in depositions of witness in this matter.” Suppl. Opp. at
20.

Their hyperbole-filled brief claims California Plaintiffs “engage in blatant

misrepresentations of facts,” then assert that counsel “attempt[ed] to exclude [New
Jersey] counsel” from the deposition of Connie Evers, and that “California Plaintiffs
refused to allot an equal amount of time in the deposition,” see Suppl. Opp. at 21-22
(citing “Guglielmo Decl.”). The reality is much different.
Connie Evers is likely the most important witness as she was the one who
developed and implemented the “healthy breakfast for children” marketing campaign.
11

See discussion of Hyland v. Harrison, 2006 U.S. Dist. LEXIS 5744, at *15-17 (D.
Del. Feb. 7, 2006), Suppl. Mem. at 22-23.
11

Case 3:11-cv-01086-FLW -DEA Document 50

Filed 09/26/11 Page 16 of 20 PageID: 696

Accordingly, the California Plaintiffs subpoenaed her deposition testimony and
requested documents from her early on, which was initially scheduled for May 25.
California Plaintiffs began to prepare, for example obtaining and reading Ms. Evers’
books and studies she cites in them. On May 16, however, Ms. Evers’ counsel invited
Glover to attend. When they were not prepared to do so on the initial date scheduled,
California Plaintiffs agreed to postpone the deposition to permit coordination. See
Weston Decl. ¶ 7 & Ex. G.
Less than a week before the deposition, on Wednesday, July 20, Glover first
contacted California Plaintiffs asking to coordinate on the deposition by having a
phone call the following Friday, which they agreed to do. See id. ¶ 8 & Ex. H.
Counsel preparing to take the deposition, Mr. Fitzgerald, attempted to reach Ms.
Skolnick on Friday but was unable. On Saturday, Ms. Scolnick sent another email
asking to coordinate on Sunday, just 2 days before the deposition, and again
California counsel agreed, this time also asking when Ms. Scolnick would be arriving
in Portland and what hotel she was staying at in order that counsel could meet in
person the evening before the deposition. But Ms. Scolnick never responded, and
California counsel never met her until she arrived just as the deposition was about to
begin. See id.

12

Case 3:11-cv-01086-FLW -DEA Document 50

Filed 09/26/11 Page 17 of 20 PageID: 697

After spending considerable time preparing for the deposition, the California
counsel also shipped four bankers’ boxes of documents to Portland, Oregon 12 for the
deposition, during which nearly 100 exhibits were marked, since there were six other
sets of counsel attending, besides California counsel.13 Besides that, California
Plaintiffs were prepared with Ms. Evers’ nutrition books, DVDs of Nutella
commercials, a bottle of Nutella for demonstrative purposes, and a slew of nonproduced materials located as part of their investigation and preparation for the
deposition. By contrast, Ms. Scolnick arrived with few documents, asking the
witness’s counsel for a stapler to prepare them. In short, New Jersey counsel
(apparently because they were travelling and relying on California counsel to take the
deposition, which required an enormous amount of preparation), were not as well
prepared to take the deposition.
The Glover Plaintiffs also attempt to create an issue out of another deposition
first noticed by California Plaintiffs, where California counsel have again been agreed
to coordinate while both cases are pending. The Glover Plaintiffs claim that after they

12

At a cost of $749.67. In addition, the California Plaintiffs’ counsel paid $5,765.20
in court reporter and videographer fees for Evers’ deposition, while Glover’s counsel
paid nothing. See Weston Decl. ¶ 9 & Ex. I.

13

The third-party witness was represented by two separate attorneys/firms, Ferrero
was represented by in-house and outside counsel, and Glover was represented by
Alabama’s Mr. Davis and Scott+Scott’s Ms. Skolnick.
13

Case 3:11-cv-01086-FLW -DEA Document 50

Filed 09/26/11 Page 18 of 20 PageID: 698

requested half of the California Plaintiffs’ deposition time, 14 “California Plaintiffs
objected to dividing the deposition and informed counsel for Plaintiff Glover and . . .
Ferrero that [they] required one week on [their] ‘substantive right to complete 7 hours
of Deposition testimony.’” That same email, however—which Mr. Guglielmo did not
attach to his Declaration—says that California Plaintiffs “are not opposed to the NJ
Plaintiffs participating in Ms. Lambotte’s deposition as they did with Ms. Connie
Evers.” Weston Decl. ¶ 10 & Ex. J. Later, California counsel clarified that they
agreed to the proposed split (3.5 hours each), reserving all rights. See id. ¶ 11 & Ex.
K at 2. The deposition is now scheduled for October 4. Id.
C.

Patrick

The Glover Plaintiffs argue the California Plaintiffs’ Motion to Intervene
brought on May 2 is in “bad faith” because they have not yet moved to intervene in
Patrick v. Ferrero U.S.A., Inc., No. 11-cv-03361-SI (N.D. Cal.), the fourth-filed
action brought in the Northern District of California on July 8, 2011. Like
Kaczmarek, Patrick was filed shortly before the MDL hearing by attorneys who have
a practice of filing copycat complaints. Following the Panel’s denial of centralization,
14

The Glover Plaintiffs claim “Ferrero has recently made available a witness noticed
by both Plaintiffs and the California Plaintiffs for deposition, see Suppl. Opp. at 20
(emphasis added). In fact, Ms. Lambotte is a third party, so the California Plaintiffs
subpoenaed her deposition on May 2, 2011. The Glover Plaintiffs do not state when
they subpoenaed Ms. Evers, nor attach a copy of the subpoena. However, an August
24 email from Ferrero’s counsel directed to California counsel makes it clear they
spearheaded the deposition, as with Ms. Evers. See Weston Decl. Ex. K at 5 (“I’m
copying . . . Joe on the assumption that counsel for Ms. Glover would like to attend”).
14

Case 3:11-cv-01086-FLW -DEA Document 50

Filed 09/26/11 Page 19 of 20 PageID: 699

Patrick appears to have not yet even been served, and has only 8 docket entries.
Moreover, there is no indication what response Ferrero will have if Patrick does elect
to serve her complaint.
D.

The Glover Plaintiffs’ Accusations of “Bad Faith” Do Not Provide
an Exception Justifying Departure from the First-Filed Rule

Moreover, even if the Court did credit the Glover Plaintiffs’ account, they have
provided no authority for the proposition that the behavior they arbitrarily label “bad
faith”—supposedly cancelling a mediation and failing to timely respond to an
email—constitute the “bad faith” on which a district court may rely to decline
application of the first-filed rule under the “exceptional circumstance” test.
For example, in Crosley, the case on which EEOC relied when announcing bad
faith as an exception to the first-filed rule, see EEOC, 850 F.2d at 976, the Court of
Appeals affirmed a district court’s application of the first-filed rule where the court
did not “find that the declaratory suit was not brought in good faith . . . .” Crosley
Corp. v. Westingonhouse Electric & Mfg. Co., 130 F.2d 474, 476 (3d Cir. 1942). In
other words, the “bad faith” inquiry is on the intent in bringing the earlier action, not
the litigants’ behavior during the course of litigation.
CONCLUSION
For the foregoing reasons, the California Plaintiffs respectfully request the
Court grant their Motion.

15

Case 3:11-cv-01086-FLW -DEA Document 50

Dated: September 26, 2011

Filed 09/26/11 Page 20 of 20 PageID: 700

Respectfully submitted,
STERNS & WEINROTH
A Professional Corporation
Attorneys for Plaintiffs-Intervenors
By: /s/ Karen A. Confoy
Karen A. Confoy
[e-mail]

Ronald A. Marron
LAW OFFICES OF RONALD
A. MARRON, APLC
3636 4th Avenue, Suite 202
San Diego, CA 92103
Telephone: [phone]
Facsimile: [phone]
Gregory S. Weston
THE WESTON FIRM
GREGORY S. WESTON
JACK FITZGERALD
1405 Morena Blvd., Suite 201
San Diego, CA 92110
Telephone: [phone]
Facsimile: [phone]
Interim Class Counsel in
In re Ferrero Litigation

16