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).

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EXHIBIT 5 1 1 UNITED STATES JUDICIAL PANEL 2 ON 3 MULTIDISTRICT LITIGATION 4 SAN FRANCISCO, CALIFORNIA; CEREMONIAL COURTROOM, NINETEENTH 5 FLOOR; JUDGE DAMRELL, JUDGE VRATIL, JUDGE HEYBURN, JUDGE 6 FURGESON, JUDGE JONES 7 IN RE: 8 AND SALES PRACTICES LITIGATION) THURSDAY, JULY 28, 2011 9 ______________________________) ORAL ARGUMENT 10 NUTELLA MARKETING ) MDL NO. 2248 REPORTER'S TRANSCRIPT OF PROCEEDINGS 11 APPEARANCES: 12 FOR THE PLAINTIFF MARNIE GLOVER: 13 15 SCOTT & SCOTT BY: JOSEPH P. GUGLIELMO, ATTORNEY AT LAW (SPEAKER ONE) 500 FIFTH AVENUE, SUITE 40 FOUR MINUTES NEW YORK, NEW YORK 10110-4099 ONE MINUTE REBUTTAL TEL (212) 302-0201 16 FOR THE PLAINTIFF ATHENA HOHENBERG AND LAURA RUDE-BARBATO: 17 THE WESTON FIRM BY: GREGORY S. WESTON, ATTORNEY AT LAW 888 TURQUOISE STREET SAN DIEGO, CALIFORNIA 92109 TEL (858) 488-1672 FAX (480) 247-4553 GREG@WESTONFIRM.COM 14 18 19 (SPEAKER TWO) FIVE MINUTES 20 FOR FERRERO U.S.A., INC: 21 22 23 WILSON SONSINI GOODRICH & ROSATI BY: KEITH E. EGGLETON, ATTORNEY AT LAW (SPEAKER THREE) 650 PAGE MILL ROAD PALO ALTO, CALIFORNIA 94304-1050 TEL (650) 493-9300 FAX (650) 493-6811 24 25 REPORTED BY: STARR A. WILSON, CSR 2462 10 1 logistics, which distributes the com -- the things. 2 there will be media, which is actually filmed the TV 3 commercials that are alleged to be deceptive in all five of 4 the cases. 5 having the case in New Jersey is not correct. 6 Jersey cases, it's not the first case. 7 second case. 8 9 And So, to say there is some great convenience of The New It is not even the It is the third and fifth case. And, finally, favoring San Diego is the fact that we're -- we have a class certification hearing set for 10 October. 11 documents in support of that, we're going to have that on 12 file soon. 13 single MDL right now in contrast to the forum that the later 14 filed New Jersey cases, they have Judge Wolfson has a -- a 15 27-case MDL against Byron pending. 16 that MDL a consolidated action, there is also a large number 17 of cases against the drug manufacturer or involving the drug 18 Flexor that have been consolidated before Judge Wolfson, and 19 that was not by an MDL, but that is nonetheless a large 20 number of complex medical and drug cases for -- 21 22 23 We've just to review thousands of pages of And the judge there, Judge Huff, does not have a JUDGE DAMRELL: And not only is there Does the defendant support centralization in New Jersey? MR. WESTON: Yes. The Defendant actually strongly 24 supports having the case in New Jersey. And I think part of 25 the reason is that the case is going slower there. 11 1 We filed our case and Judge Huff repeatedly denied 2 discovery stage and has put the case on a fast track, which 3 is why we're now prepared to file a class certification 4 motion and we have a stipulated briefing schedule and a date 5 set of October 12 for that. 6 JUDGE FURGESON: That brings a -- I congratulate 7 you and Judge Huff for moving so quickly. 8 was filed in February and you're having a class action 9 hearing in -- in October? 10 MR. WESTON: 11 JUDGE FURGESON: 12 MR. WESTON: 13 and not due to me. 14 15 I -- your case That I'll -That is a really fast track. That is entirely due to Judge Huff Um, what happened is -- (Laughter). JUDGE FURGESON: You want to give credit where credit is due. 16 MR. WESTON: I -- we filed our opposition for 17 motion to transfer, and the Defendants filed a client 18 support. 19 opinion that had obviously reviewed lots of exhibits that 20 were produced by both parties, and the same thing with 21 motion though dismiss. 22 a hearing and instead we got this long, very long thought 23 out word on denying, in almost every respect, the 24 Defendant's motion to dismiss. 25 And about three days later, this long detailed She decided she didn't need to have JUDGE FURGESON: And so you and the Defendants 12 1 have put this case on an incredibly fast track, correct? 2 And you've done -- you're thinking you're going to finish 3 your discovery and you're going to be ready, both sides are 4 ready to have a class action certification hearing in 5 October? 6 MR. WESTON: 7 JUDGE FURGESON: 8 Yes. And Judge Huff said you're going to be ready, whether you want to or not. 9 MR. WESTON: She didn't set a deadline for class 10 certification. 11 and the rules say when you're ready, then you should file 12 it. 13 14 15 But we've been -- done all that discovery, JUDGE FURGESON: I understand that you said you had a hearing set. MR. WESTON: We do have a hearing set and 16 scheduled October 12 as well and we also have a stipulated 17 briefing schedule with the Defendant. 18 19 JUDGE FURGESON: And, I'm sorry, you said there is a hearing scheduled? 20 MR. WESTON: Yes. 21 JUDGE FURGESON: 22 MR. WESTON: 23 JUDGE FURGESON: 24 MR. WESTON: 25 JUDGE HEYBURN: October 12? Yes. Thank you. Thank you. Thank you very much.

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