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).

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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

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IN RE FERRERO LITIGATION
________________________

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VIDEOTAPED DEPOSITION OF CONNIE EVERS

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C O N F I D E N T I A L

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Taken in behalf of Plaintiffs

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Tuesday, July 26, 2011

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TSG JOB NO. 39549
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UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
TRENTON DIVISION
MARNIE GLOVER, individually
and on behalf of all others
similarly situated,
Plaintiff,
v.
No. 11-CV-01086
FERRERO USA, INC.,
Defendant.

VIDEOTAPED DEPOSITION OF CONNIE EVERS
CONFIDENTIAL
Taken in behalf of Plaintiffs
Tuesday, July 26, 2011

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BE IT REMEMBERED THAT, pursuant to the Federal
Rules of Civil Procedure, the deposition of CONNIE
EVERS was taken before Marilynn T. Hoover, a Certified
Shorthand Reporter in Oregon, Washington, and
California; on Tuesday, July 26, 2011, commencing at
the hour of 9:08 A.M.; at STOLL BERNE P.C., 209 S.W.
Oak Street, Suite 500, in Portland, Oregon.
THE WESTON FIRM
BY MR. JACK FITZGERALD
888 Turquoise Street
San Diego, California 92109
On behalf of Plaintiffs

DAVIS & TALIAFERRO
BY MR. GREG DAVIS
7031 Halcyon Park Drive
Montgomery, Alabama 36117
On behalf of Plaintiff Glover

VIDEOGRAPHERS: Ms. Anna Austin, Mr. Mick Irwin

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APPEARANCES (CONT.)
SCOTT & SCOTT
BY MS. JUDY SCOLNICK
500 5th Avenue, 40th Floor
New York, New York 10110
On behalf of Plaintiff Glover

WILSON SONSINI GOODRICH & ROSATI
BY MS. COLLEEN BAL
650 Page Mill Road
Palo Alto, California 94304
On behalf of Ferrero

FERRERO USA, INC.
BY MS. BETH M. KOTRAN
600 Cottontail Lane
Somerset, New Jersey 08873
On behalf of Ferrero USA Inc.

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APPEARANCES (CONT.)
TIMOTHY W. GRABE, P.C.
BY MR. TIMOTHY W. GRABE
2720 N.E. 33rd Avenue
Portland, Oregon 97212
On behalf of the Witness

STOLL BERNE
BY MR. SCOTT SHORR
209 S.W. Oak Street
Portland, Oregon 97204
On behalf of the Witness

LAW OFFICE OF RONALD A. MARRON, APLC
BY MR. RONALD A. MARRON
3636 Fourth Avenue, Suite 202
San Diego, California 92103
On behalf of Plaintiffs

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s.
Q. Okay. And the second bullet point under the
"just a recap of our conversation," you say: "Beef to
actually brief M.D.'s, Ph.D.'s, R.D.'s, et cetera, on
breakfast," slash, "Nutella"?
A. Um-hum.
Q. "Any new findings or cutting edge research?
What is the motivation for them to spend 30 minutes on
the phone?" Do you see that?
A. Yes.
Q. Did you get an answer to your question of
whether there's any new findings or cutting edge
research to share with key opinionators?
A. As I recall, we discussed breakfast research
studies. My concern was that we're talking to very
high-level key opinion leaders and I didn't want to
just tell them something that's commonly known; and so
we discussed that we would be talking about breakfast
research, both in terms of the importance and also in
terms of kids skipping breakfast, and how Nutella
could be part of this.

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THE WITNESS: -- Nutella is a tool for getting
your kids to eat breakfast on a busy morning, that
specific message is consistent.

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Q. Okay. Is the messaging you were hired to
promote also conveyed on Nutella's label?
MS. BAL: Objection. Vague and ambiguous.
THE WITNESS: Yes.

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Q. Okay. So the messaging was conveyed on
posters as well?
A. Yes.
Q. Okay. Do you have those posters in your
possession?
A. No.
Q. Was the messaging conveyed in print
magazines?
A. Yes.

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Do you see the first sentence says: "As families
rush around in the morning, breakfast may be viewed as
yet another distraction"?
A. Yes.
Q. What support is this -- What support is
there for this statement?
A. It would be editorial copy based on research
that shows a lot of American families skip breakfast
and a lot of American children still miss breakfast
many days of the week, especially as they get older.
Q. What is the research that the editorial
comment is based on?
A. There are a number of surveys that show that
children continue to -- I mean, there's a number of
studies and surveys.
Q. Okay. Do you have something specific in
mind that supports this statement?
A. One thing that comes to mind, American
Dietetic Association Foundation did a family nutrition
survey in 2010 that again showed many kids are
skipping breakfast. And the research support is
pretty clear: As children get older, especially, they
skip more and more meals, but an alarming number of
kids still go to school without breakfast.

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Q. Okay. The 2010 American Dietetics
Association study that you just referenced, that was
published after this copy was on the Web site, wasn't
it?
A. Right. I just thought of that as an
example, because you just asked me if I knew research
support. There's others.
Q. Okay. What was the support when this
statement was made?
A. There's many. There's a lot of research
that supports that.
Q. Okay.
A. There's a whole body of evidence. I mean,
for instance, the -- you know the review study; but
there's -- there's a whole body of research.
Q. And -A. And surveys and government data and market
research, et cetera.
Q. And this is all about skip -- habits in
skipping breakfast?
A. Yes.
Q. Can you go to the paragraph below the bullet
points. It says: "While we all know that eating a
balanced breakfast is important, having time to feed
our children a wholesome meal in the morning can be a

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challenge." Do you see that?
A. Yes.
Q. Do you agree with the statement that "we all
know that eating a balanced breakfast is important"?
A. I think it's an editorial comment. I don't
think that it means every single person in the United
States of America knows that eating a balanced
breakfast is important. It's an editorial comment.
Q. Okay. And do you agree with that editorial
comment?
A. Yes, I do. I wrote it.
Q. The second part of the sentence says:
"Having the time to feed our children a wholesome meal
in the morning can be a challenge."
What support is there for that statement?
A. I think it's common sense.
Q. So no -- there's no research based support
for that statement?
A. I think I could find research.
Q. Okay.
A. But I think it's also common sense.
Q. Okay. When you wrote this, you weren't
thinking of some specific research; it's just an
editorial comment?
A. Yeah, there's a research study right there;

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it compiles 47 studies.
Q. At the bottom?
A. Um-hum.
Q. You're referring to the footnote?
A. Um-hum.
Q. That footnote is relating to the paragraph
beforehand, isn't it?
A. Yes. But that Rampersaud study, breakfast
habits, nutritional status, body weight and academic
performance in children and adolescents is actually a
compilation of 47 -Q. Right.
A. -- pieces of work.
Q. Okay. Does -A. So there is, you know, just there, there's
research backing.
Q. Okay. Does Rampersaud or any of the 47
studies that it summarizes talk about whether mothers
have time to feed children a meal in the morning?
A. I -- I would have to look at that. I don't
know.

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Q. Okay. The idea of the battle at breakfast
and what you've just described as a mother, is there
any research-based authority for those things you just
described?
A. Right. Market -- Market research that talks

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about -- you know, that goes into detail; there's
market research that address the barriers why kids
skip breakfast.
Q. Okay. What is that research specifically?
A. There's a number of -- I don't have a
specific citation, but it -- you know, I've been
exposed to it a number of times.
Q. How many research studies support that?
A. I don't know.
Q. And, I'm sorry. You said that these were
market studies as opposed to nutrition studies?
A. Because I've worked with a number of
industry clients, they often -(Reporter request.)
THE WITNESS: Because I work with food industry,
they often contract with market research firms, and I
have been exposed to this data, as well as heard it
anecdotally from a lot of families that I talk to and
work with.

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Q. Is "balanced breakfast" a synonym for
"healthy breakfast"?
A. Yes.
Q. So "balanced" is -- in this context, it's a
euphemism for "healthy"; right?
A. Yes.
Q. And occasionally Ferrero has talked about
healthy breakfasts featuring Nutella, correct, as
opposed to balanced breakfasts?
A. I believe so.

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Q. Okay. This number, "Sixty-six percent of
moms want to provide something their child will eat
without supervision," do you have an understanding of
where that number is derived from?
A. My understanding is from this Just Kid Inc.
March 2009 survey. That's my understanding.

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Q. Do you see under the heading "breakfast
positioning and usage," the first bullet point, it
says: "It can be difficult for moms to persuade their
children to eat breakfast."
Is that an editorial comment, or is there a
specific research-based source for that statement?
A. Again, as I've referenced, market surveys,
American Dietetic Association -- many studies,
including Rampersaud. Children don't eat breakfast.
A lot of children are skipping breakfast, and that is
what this is referring to.

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Q. Okay. What percentage of children skip
breakfast?
A. It varies among studies, but pretty much all
the surveys and studies that I look at have -- have
that data; and it varies among ethnic groups,
socioeconomic groups, et cetera, et cetera. There's a
body of research and surveys on that.

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