Hohenberg v. Ferrero USA, Inc

Filing 83

RESPONSE in Support re 51 MOTION for Class Certification filed by Athena Hohenberg, Laura Rude-Barbato. (Attachments: # 1 Declaration of Melanie Persinger in Support of Motion for Class Certification, # 2 Exhibit 1 (Redacted excerpts from Deposition Transcript of Connie Evers), # 3 Exhibit 1 (Redacted excerpts from Deposition Transcript of Bernard Kreilmann, # 4 Exhibit 3 (Ferrero Response to Interrogatory No. 4), # 5 Exhibit 4 (Aspen Logistics Item # 89371), # 6 Exhibit 5 (Multi-State Conflicts Analysis))(Fitzgerald, John) (ag).

1 THE WESTON FIRM
GREGORY S. WESTON (239944)
2 [e-mail]
3 JACK FITZGERALD (257370)
[e-mail]
4 MELANIE PERSINGER (275432)
[e-mail]
5 COURTLAND CREEKMORE (182018)
[e-mail]
6 1405 Morena Blvd., Suite 201
7 San Diego, CA 92110
Telephone:
[phone]
8 Facsimile: [phone]

LAW OFFICES OF RONALD A. MARRON,
APLC
RONALD A. MARRON (175650)
[e-mail]
3636 4th Street, Suite 202
San Diego, CA 92103
Telephone:
[phone]
Facsimile:
[phone]

9 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 MELANIE
PERSINGER IN SUPPORT OF
PLAINTIFFS’ REPLY IN SUPPORT OF
MOTION FOR CLASS CERTIFICATION
Judge: Hon. Marilyn L. Huff
Date: November 7, 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 MELANIE PERSINGER IN SUPPORT MOTION FOR CLASS CERTIFICATION

1 I, Melanie Persinger, declare:
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1.

I am a member in good standing of the State Bar of California and of the United States District

3 Courts for the Northern, Central and Southern Districts of California. I make this Declaration in support of
4 Plaintiff’s Motion for Class Certification.
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2.

Attached hereto as Exhibit 1 is a true and correct copy of the transcript for the deposition of

6 Connie Evers.
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3.

Ferrero’s assertion that its Nutella messaging greatly varied is contradicted by the record. See

8 Ex. 1, Evers Dep. Tr. 117:2-4 (“Nutella is a tool for getting your kids to eat breakfast on a busy morning, that
9 specific message is consistent.”); 117:20-23 (“Q. Is the messaging you were hired to promote also conveyed
10 on Nutella’s label? A. Yes.”); 118:8-16 (“Q. So was the messaging conveyed on posters as well? A. Yes. . . .
11 Q. Was the messaging conveyed in print magazines? A. Yes.”); 247:15-24 (“Q. Is ‘balanced breakfast’ a
12 synonym for ‘healthy breakfast’? A. Yes. Q. So ‘balanced’ is—in this context, it’s a euphemism for ‘healthy’;
13 right? A. Yes.”).
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4.

Evers’ testimony demonstrates that Plaintiffs’ claims can be proved or disproved by common

15 evidence. See Ex. 1, Evers Dep. Tr. at 65:4-23 (describing Evers’ desire for “breakfast research studies” that
16 she could share with key opinion leaders); 163:7-12 (“
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”);

19 195:2-198:21, 211:21-212:19 (discussing academic studies that purportedly support Nutella messaging);
20 248:23-249:6 (
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”); 251:1-6 (“Q. This number, ‘Sixty-six percent

24 of moms want to provide something their child will eat without supervision,’ do you have an understanding of
25 where that number is derived from? A. My understanding is from this Just Kid Inc. March 2009 survey. That’s
26 my understanding.”); 282:2-12 (stating that “I’ve referenced, market surveys, American Dietetic
27 Association—many studies, including Rampersaud” to support Nutella messaging claim); 284:13-19 (the
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In re Ferrero Litigation, Case No. 3:11-CV-00205-H-CAB
DECLARATION OF MELANIE PERSINGER IN SUPPORT OF MOTION FOR CLASS CERTIFICATION

1 percentage of children who skip breakfast “varies among studies”); 353:4-355:19 (discussing scientific
2 understanding of effects of sugar and saturated fat on health).
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Though at this stage, they are required only to show that there is an issue of fact as to reliance,

4 Plaintiffs’ testimony readily establishes their reliance. See Hohenberg Dep. Tr., Dkt. No. 76-4 at 27:12-14,
5 28:4-11, 29:1-12, 58:4-59:1, 61:15-62:16, 94:20-95:4, 119:7-12, 136:22-137:17, 184:17-185:11, 188:3-189:1;
6 Rude-Barbato Dep. Tr., Dkt. No. 76-5 at 27:12-28:15, 28:25-29:11, 30:18-24, 50:25-51:11, 90:12-91:12,
7 108:16-24, 117:15-21, 125:20-22, 126:20-192:1, 129:4-131:17, 137:22-139:1, 152:14-154:5, 162:19-163:10,
8 191:12-22.
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6.

Ms. Hohenberg testified that Ferrero’s “hazelnut” representations would only be appropriate if

10 Nutella was made “mostly” of hazelnuts, which it is not. Hohenberg Dep. Tr. 12:2-15 (“I wouldn’t be
11 educated enough to know if that is a quantity amount to say that the product’s mostly made of hazelnut. . . . If
12 it’s made mostly of hazelnut, if that 50 hazelnuts is that amount, then I would be okay with that.”); see also id.
13 at 11:20-24 (propriety of identifying number of hazelnuts depends on proportion in product); 127:7 (Ms.
14 Hohenberg learned Nutella “wasn’t a hazelnut spread”); see generally id. at 139:9-22 (representation is
15 material because “I feel hazelnuts are healthy.”). But Plaintiffs’ Complaint alleges Nutella is made of only
16 13% hazelnut, and Ms. Hohenberg’s impression that it meant Nutella was “mostly” hazelnut is exactly why
17 the claim is deceptive. See FACC ¶ 81. Similarly, Ms. Rude-Barbato testified “it would be okay to put
18 [hazelnut] in the ingredients. But to advertise it as a hazelnut spread, I don’t believe is accurate.” Rude19 Barbato Dep. Tr. at 42:1-3. In sum, any responses Plaintiffs provided that Ferrero characterizes as “not
20 objecting” to the claims are based on incomplete knowledge and clarified by other testimony.
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7.

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

22 transcript of Ferrero’s CEO, Bernard Kreilmann. According to Mr. Kreilmann, before using Aspen Logistics
23 to distribute Nutella to the west coast, Ferrero used OHL. See Ex. 2, Kreilmann Dep. Tr. at 16:21-17:8.
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Mr. Kreilmann also testified that Los Angeles’ Believe Media filmed Nutella commercials, see

25 id. at 33:16-23.
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Mr. Kreilmann also testified about Nutella’s formulation, see id. at 81:5-83:13.

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10.

Attached hereto as Exhibit 3 is Defendant Ferrero’s Response to Interrogatory No. 4.

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In re Ferrero Litigation, Case No. 3:11-CV-00205-H-CAB
DECLARATION OF MELANIE PERSINGER IN SUPPORT OF MOTION FOR CLASS CERTIFICATION

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Attached hereto as Exhibit 4 is a true and correct copy of a document produced by Aspen

2 Logistics entitled “ITEM 89371.” Exhibit 4 shows that Aspen delivers Nutella to the following 11 states:
3 Arizona, California, Colorado, Hawaii, Idaho, Montana, Nevada, New Mexico, Oregon, Utah, and
4 Washington.
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I declare under penalty of perjury under the laws of the United States that the foregoing is true and

Attached hereto as Exhibit 5 is a multi-state conflicts of law analysis.

7 correct.
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Executed on October 21, 2011 in San Diego, California.

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/s/Melanie Persinger
Melanie Persinger

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13 Dated: October 21, 2011

Respectfully submitted,

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/s/ Jack Fitzgerald

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THE WESTON FIRM
GREGORY S. WESTON
JACK FITZGERALD
MELANIE PERSINGER
COURTLAND CREEKMORE
1405 Morena Blvd., Suite 201
San Diego, CA 92110
Telephone: [phone]
Facsimile: [phone]
LAW OFFICES OF RONALD A. MARRON, APLC
RONALD A. MARRON
3636 4th Street, Suite 202
San Diego, CA 92103
Telephone: [phone]
Facsimile: [phone]

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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 MELANIE PERSINGER IN SUPPORT OF MOTION FOR CLASS CERTIFICATION