Hohenberg v. Ferrero USA, Inc

Filing 90

RESPONSE in Opposition re 89 MOTION to Strike filed by Athena Hohenberg, Laura Rude-Barbato. (Attachments: # 1 Proof of Service)(Weston, Gregory) (ag).

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1 LAW OFFICES OF RONALD A. 2 3 4 5 MARRON, APLC RONALD A. MARRON (175650) ron.marron@gmail.com 3636 4th Avenue, Suite 202 San Diego, California 92103 Telephone: (619) 696-9006 Facsimile: (619) 564-6665 6 7 8 THE WESTON FIRM GREGORY S. WESTON (239944) greg@westonfirm.com JACK FITZGERALD (257370) jack@westonfirm.com MELANIE PERSINGER (275423) mel@westonfirm.com COURTLAND CREEKMORE (182018) courtland@westonfirm.com 1405 Morena Blvd., Suite 201 San Diego, CA 92110 Telephone: (619) 798-2006 Facsimile: (480) 247-4553 9 10 11 Interim Class Counsel 12 13 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA 14 15 IN RE FERRERO LITIGATION 16 17 18 19 20 21 22 CASE NO. 3:11-CV-00205-H-CAB Pleading Type: Class Action Action Filed: February 01, 2011 PLAINTIFFS’ OPPOSITION TO FERRERO’S MOTION TO STRIKE THE DECLARATION OF MELANIE PERSINGER Judge: Hon. Marilyn L. Huff Date: November 7, 2011 Time: 10:30 a.m. Location: Courtroom 13 23 24 25 26 27 28 In re Ferrero Litigation, Case No. 3:11-CV-00205-H-CAB OPPOSITION TO FERRERO’S MOTION TO STRIKE THE DECLARATION OF MELANIE PERSINGER 1 INTRODUCTION 2 Ferrero’s “Motion to Strike Paragraphs 3 through 6 of the Declaration of Melanie 3 Persinger and Exhibit 5 Thereto” should be denied for several reasons. First, case law provides 4 that Plaintiffs may represent a multi-state class if they demonstrate that the laws of the states 5 included within the proposed class do not materially conflict with their state-law claims, but such 6 an analysis is impossible in a ten-page brief that must also address Ferrero’s remaining 7 arguments opposing class certification. Second, the use of such exhibits to perform the required 8 conflicts analysis is routine. Third, the introductory sentences in paragraphs 3 through 6 of the 9 Persinger Declaration are not argument, but instead merely repeat the argument made in the brief 10 for transition and ease of reference. 11 ARGUMENT 12 I. An Adequate Multi-State Conflicts-of-Law Analysis is Permissible Yet Cannot be 13 Accomplished in Ten Pages 14 Multi-state class actions may be certified where counsel “affirmatively demonstrate[s]” 15 that “variations regarding [state] claims . . . could be managed in a practical manner.” Grayson v. 16 7-Eleven, Inc., 2011 U.S. Dist. LEXIS 62211, at *14-15 (S.D. Cal. June 10, 2011). Thus, 17 Plaintiffs’ counsel must be “prepared to demonstrate the commonality of substantive law 18 applicable to all class members.” Hanlon v. Chrysler Corp., 150 F.3d 1011, 1022 (9th Cir. Cal. 19 1998) (citing Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 821-23 (1985)). 20 Such a complex conflicts-of-law analysis sufficient to support Plaintiffs’ request that the 21 Court certify a multi-state class if it does not certify a nationwide class,1 simply cannot be 22 accomplished within the confines of a ten-page brief. This is especially so because Plaintiffs also 23 had to address the remaining arguments against class certification raised in Ferrero’s opposition. 24 If confined to ten pages in their conflicts-of-law analyses (or even 25 pages if advanced as part 25 of an opening brief), no plaintiff would be able to meet her burden of demonstrating the 26 1 Plaintiffs advanced this argument solely as an alternative to certification of a nationwide class in the event the Court agrees with Ferrero’s argument, raised in its Opposition, that there are 27 insufficient contacts to satisfy due process. Plaintiffs maintain that certification of a nationwide 28 class is proper and, if the Court agrees, their multi-state analysis will, in any event, be moot. 1 In re Ferrero Litigation, Case No. 3:11-CV-00205-H-CAB OPPOSITION TO FERRERO’S MOTION TO STRIKE THE DECLARATION OF MELANIE PERSINGER 1 commonality of substantive law among many states, and no multi-state class action would ever 2 be certified (for example, Plaintiffs’ detailed analysis here comprises 51 pages). This outcome is 3 at odds with “the United States Supreme Court [which] has instructed that ‘multi-state . . . class 4 actions can be, and are, maintained in many instances.’” Khorrami v. Lexmark Int’l, 2007 U.S. 5 Dist. LEXIS 98807, at *12 (C.D. Cal. Sept. 13, 2007). 6 II. Court’s Routinely Consider Detailed Conflicts-of-Law Analyses in Exhibits 7 Because a detailed conflicts-of-law analysis cannot be made within the confines of a 8 short brief, Courts routinely consider such analyses contained in exhibits or appendices. See, e.g., 9 Mazza v. Am. Honda Motor Co., 254 F.R.D. 610, 620 (C.D. Cal. 2008) (“Defendant’s Appendix 10 lists the relevant law from all 44 of the jurisdictions in which proposed class members reside”); 11 In re HP Inkjet Printer Litig., 2008 U.S. Dist. LEXIS 56979, at *21 (N.D. Cal. July 25, 2008) 12 (noting that defendant “submitted a detailed analysis of the variations in state consumer 13 protection and deceptive trade practices laws” in the form of exhibits attached to its class 14 certification opposition).2 15 III. Plaintiffs Do Not Rely on Paragraphs 3 Through 6 of the Persinger Declaration as 16 Argument 17 To the extent paragraphs 3 through 6 of the Persinger Declaration could be construed as 18 legal argument, Plaintiffs do not rely on these statements. Instead, the introductory sentences in 19 these paragraphs merely repeat the assertions made in Plaintiffs’ Reply for the reader’s ease of 20 reference and transition. See, e.g., Reply at 1:20-21, 1:23 (“Using the same class-wide evidence 21 Plaintiffs submitted, Ferrero asserts it did not convey to consumers uniform messaging. . . . 22 23 24 25 26 27 28 2 See also In re St. Jude Med., Inc. Silzone Heart Valves Prods. Liab. Litig., MDL No. 01-1396 (JRT/FLN), 2006 U.S. Dist. LEXIS 74797, at * 13 (D. Minn. Oct. 13, 2006) (“Plaintiffs have provided the Court with a detailed analysis of consumer protection statutes across the United States.”); id. at Dkt. No. 409-1 through 409-54 (showing separate exhibits for each state and the District of Columbia, with each exhibit ranging from 3 to 18 pages in length); Lyon v. Caterpillar, Inc., 194 F.R.D. 206, 220-21 (E.D. Pa. May 22, 2000) (discussing exhibits that both plaintiff and defendant attached relating to argument that multi-state class should be certified); Anderson v. Atl. Recording Corp., 2010 U.S. Dist. LEXIS 44168, at *24 (D. Or. May 4, 2010) (on motion for class certification, considering plaintiff exhibits titled “Fifty State Analysis for a Claim of Abuse of Process,” “Fifty State Analysis of a Negligence Cause of Action,” and “Fifty State Analysis of Civil Conspiracy Cause of Action”). 2 In re Ferrero Litigation, Case No. 3:11-CV-00205-H-CAB OPPOSITION TO FERRERO’S MOTION TO STRIKE THE DECLARATION OF MELANIE PERSINGER 1 Ferrero’s argument is contradicted by the record.”); Persinger Decl. ¶ 3(“Ferrero’s assertion that 2 its Nutella messaging greatly varied is contradicted by the record.”). 3 Moreover, Paragraph 6 of the Persinger Declaration contains statements of fact, not legal 4 argument. This paragraph summarizes Plaintiffs’ testimony and comments on the ingredients of 5 Nutella, all of which are facts that Ms. Persinger declares are true and correct. Accordingly, the 6 Court should decline to strike this paragraph on those separate grounds. 7 CONCLUSION 8 For the foregoing reasons, Plaintiffs respectfully request the Court deny Defendant’s 9 Motion to Strike portions of the Persinger Declaration. 10 Dated: November 3, 2011 Respectfully submitted, 11 /s/ Gregory S. Weston 12 THE WESTON FIRM GREGORY S. WESTON JACK FITZGERALD MELANIE PERSINGER 1405 Morena Blvd., Ste 201 San Diego, CA 92109 Telephone: (619) 798-2006 Facsimile: (480) 247-4553 13 14 15 16 17 18 19 20 LAW OFFICES OF RONALD A. MARRON, APLC RONALD A. MARRON 3636 4th Street, Suite 202 San Diego, CA 92103 Telephone: (619) 696-9066 Facsimile: (619) 564-6665 21 22 Interim Class Counsel 23 24 25 26 27 28 3 In re Ferrero Litigation, Case No. 3:11-CV-00205-H-CAB OPPOSITION TO FERRERO’S MOTION TO STRIKE THE DECLARATION OF MELANIE PERSINGER

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