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).

EXHIBIT 2

Page 1
1

CONFIDENTIAL - KREILMANN

2
3

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
CASE NO. 3:11-CV-00205-H-CAB

4
5
IN RE:
6
7
8

NUTELLA DECEPTIVE SALES
PRACTICES & MARKETING
LITIGATION
------------------------

)
)
)
)
)
)

9
10

DEPOSITION OF BERNARD F. KREILMANN, C.F.O.

11

BRIDGEWATER, NEW JERSEY

12

APRIL 14, 2011

13
14
15

**CONTAINS HIGHLY CONFIDENTIAL PORTIONS**

16
17
18
19
20
21
22
23
24
25

REPORTED BY:
SILVIA P. WAGE, CCR, CRR, RPR
JOB NO. 37839
TSG Reporting - Worldwide

877-702-9580

Page 2
A P P E A R A N C E S:

1
2

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25

Page 3

9:19 a.m.
April 14, 2011

THE WESTON FIRM
Attorneys for Plaintiffs
2811 Sykes Court
Santa Clara, California 95051
BY: JACK FITZGERALD, ESQ

3

4
5
Deposition of BERNARD F. KREILMANN, CHIEF
FINANCIAL OFFICER, held at the offices of NORRIS,
6
McLAUGHLIN, 721 Route 202-206, First Floor Board
7
Room, Bridgewater, New Jersey, pursuant to
agreement before SILVIA P. WAGE, a Certified
8
Shorthand Reporter, Certified Realtime Reporter,
9
Registered Professional Reporter, and Notary
10
Public for the State of New Jersey.
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25

.
BY: GREGORY WESTON, ESQ.
WILSON SONSINI GOODRICH & ROSATI
Attorneys for Nutella and Ferrero
650 Page Mill Road
Palo Alto, California 94304
BY: DALE BISH, ESQ.

A L S O P R E S E N T:
BETH M. KOTRAN, ESQ.
FERRERO

Page 4
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25

CONFIDENTIAL - KREILMANN
B E R N A R D F. K R E I L M A N N, C. F. O.,
(Ferrero Business Address) 600 Cottontail
Lane, Somerset, New Jersey 08873, called as
a witness, having been duly sworn by a
Notary Public, was examined and testified as
follows:
EXAMINATION BY
BY MR. FITZGERALD:
Q. Good morning, Mr. Kreilmann.
A. Good morning.
Q. Am I saying that right -A. Yes.
Q. -- Kreilmann?
A. Perfect.
MR. BISH: Should we introduce
ourselves for the record.
MR. FITZGERALD: Sure, let's make
appearances.
Jack Fitzgerald and Gregory Weston of The
Weston Firm on behalf of Plaintiffs.
MR. BISH: Dale Bish, Wilson Sonsini,
for Ferrero U.S.A.
MS. KOTRAN: Beth Kotran, legal
counsel for Ferrero U.S.A. in-house.

Page 5
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25

CONFIDENTIAL - KREILMANN
THE WITNESS: And Bernard Kreilmann,
Chief Executive Officer, for Ferrero U.S.A.
Q. Mr. Kreilmann, have you ever been
deposed before?
A. Once.
Q. When was that?
A. In 2001.
Q. So it's been a while?
A. It's been a while.
Q. Okay. Well, I'm sure you had some
discussions with your attorney about how today is
going to go and you had some experience from
doing it ten years ago. So you know that I'm
going to ask you questions today and you have to
answer under oath?
A. Yes.
Q. Okay. Is there any physical or
medical reason you can't give your best testimony
today?
A. No.
Q. Was that a no?
A. It was a no.
Q. Okay. So, actually, as another
reminder --

2 (Pages 2 to 5)
TSG Reporting - Worldwide

877-702-9580

Page 14
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25

CONFIDENTIAL - KREILMANN
that?
A. Yes, I see that.
Q. What facilities are in Toronto?
A. To my knowledge, the entity of
Toronto is administration, marketing and sales
entity.
Q. Is the Brantford facilities, is that,
also, Ferrero Canada LTD?
A. I am not sure. I don't know the
corporate structure of Ferrero Canada LTD.
Q. If you wanted to find out, what would
you do?
A. I would ask the COO of Ferrero
Canada.
Q. And who is that?
A. Allen Cosman.
Q. Can you spell the last name for the
court reporter.
A. C-O-S-M-A-N.
Q. Thank you.
In Paragraph 5 you say That, "Nutella is
distributed in the United States using
third-party distributors at various facilities
including one that's located in Ontario,

Page 15
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25

Page 16
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25

CONFIDENTIAL - KREILMANN
Q. Okay.
A. -- for us.
Q. What's the distinction you draw
between that and being a distributorship?
A. That they have -- for me a
distributor is also responsible for selling in
all terms. This is not the responsibility of
this warehouse. This warehouse is only managing
the floor of goods.
Q. I see.
So Ferrero makes the sale and then
forwards the purchase orders to Aspen who then
does the shipping?
A. Deploy, exactly.
Q. And what region does Aspen cover in
terms of shipping?
A. Precisely, I can't tell. But I would
say most of the West Coast and all the way down
to the Rockies.
Q. Before Ferrero was using Aspen for
that function, who was it using to supply to ship
products to that region?
A. We were -- we had the global logistic
contract with the company OHL.

CONFIDENTIAL - KREILMANN
California." Do you see that?
A. Yes.
Q. Okay. What is the name of the
distributorship located in Ontario, California?
A. It's Aspen Warehouse.
Q. Aspen Warehouse?
A. Aspen, A-S-P-E-N, like the ski
resort.
Q. Like in Colorado?
A. Yes. But that has been a recent
choice.
Q. How long have you been using them?
A. The contract, to my knowledge, is
within the last six months.
Q. Before Aspen Warehouse -- well, let
me back up. Let me strike that and let me back
up.
Aspen Warehouse is a distributorship,
correct?
A. No, it's what we call a 3PL.
Q. Excuse me?
A. A 3PL, which is a public warehouse.
So it perform activities of warehousing and
shipping --

Page 17
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25

CONFIDENTIAL - KREILMANN
Q. Does that stand for something that
you know?
A. Osborn and then something.
Q. Okay.
A. And so they were -- we were in
contract with OHL and they were performing this
activity for us in California.
Q. Okay. Why did that contract end?
A. Because the service that was
performed wasn't satisfactory.
Q. In what respect?
A. The service level, the
responsiveness, the accuracy of the inventory.
We had a list of issues that didn't improve.
Q. When Nutella is being distributed -well, let me back up.
Nutella is manufactured in Brantford,
Ontario, correct?
A. Correct.
Q. When it's then distributed, does it
go directly from Brantford to your shippers like
Aspen?
A. If it is an order that transit to
this warehouse, it is, from the factory directly

5 (Pages 14 to 17)
TSG Reporting - Worldwide

877-702-9580

Page 30
1
2
3

Page 31

CONFIDENTIAL - KREILMANN

1

1
2
3

CONFIDENTIAL - KREILMANN

1

Page 32
1
2

CONFIDENTIAL - KREILMANN

Page 33
1
2

13
14
15
16
17
18
19
20
21
22
23
24

CONFIDENTIAL - KREILMANN

Finally, back to the interrogatory
responses, Plaintiff's Exhibit 4, directing your
attention to Response No. 4.
At the very end of the response, it says,
"Ferrero understands that its third-party vendors
may contract with other entities for services
including Believe Media in Los Angeles with
respect to the filming of two television
advertisements relating to Nutella." Do you see
that?
A. Yes.

9 (Pages 30 to 33)
TSG Reporting - Worldwide

877-702-9580

Page 78
1
2

Page 79

CONFIDENTIAL - KREILMANN

1
2
3

Page 80
1
2
3

CONFIDENTIAL - KREILMANN

Page 81

CONFIDENTIAL - KREILMANN

1
2
3

CONFIDENTIAL - KREILMANN

5
6
7
8
1

1

16

21 (Pages 78 to 81)
TSG Reporting - Worldwide

877-702-9580

Page 82
1
2

Page 83
1
2

CONFIDENTIAL - KREILMANN

CONFIDENTIAL - KREILMANN

1

14
15

19
20

Page 84
1
2
3
4
5

Page 85

CONFIDENTIAL - KREILMANN

1
2
3

CONFIDENTIAL - KREILMANN

7
8
9
1
11
12
13
14

1

16

22 (Pages 82 to 85)
TSG Reporting - Worldwide

877-702-9580