Hohenberg v. Ferrero USA, Inc

Filing 92

SUPPLEMENTAL BRIEFING by Plaintiffs Athena Hohenberg, Laura Rude-Barbato re 51 MOTION for Class Certification Pursuant to Order at Hearing. (Attachments: # 1 Proof of Service)(Fitzgerald, John) (ag).

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

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THE WESTON FIRM
GREGORY S. WESTON (239944)
[e-mail]
JACK FITZGERALD (257370)
[e-mail]
MELANIE PERSINGER (275423)
[e-mail]
COURTLAND CREEKMORE (182018)
[e-mail]
1405 Morena Blvd., Suite 201
San Diego, CA 92110
Telephone: [phone]
Facsimile: [phone]

Interim Class Counsel

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UNITED STATES DISTRICT COURT

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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
SUPPLEMENTAL STATEMENT OF
AUTHORITY IN SUPPORT OF CLASS
CERTIFICATION (PURSUANT TO
ORDER AT HEARING)

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Judge: Hon. Marilyn L. Huff
Date: November 7, 2011
Time: 10:30 a.m.
Location: Courtroom 13

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PLAINTIFFS’ REPLY IN SUPPORT OF MOTION FOR CLASS CERTIFICATION

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Wal-Mart has not turned class certification into a “mini-trial,” and expert evidence is not necessary to

2 show the predominance of common questions in this routine consumer fraud case under California’s UCL,
3 FAL and CLRA. In Ellis v. Costco Wholesale Corp., the Ninth Circuit cautioned: “Costco seems to equate a
4 ‘rigorous analysis’ with an in-depth examination of the underlying merits . . . . This is incorrect. The district
5 court is required to examine the merits . . . only inasmuch as it must determine whether common questions
6 exist; not to determine whether class members could actually prevail on the merits of their claims. To hold
7 otherwise would turn class certification into a mini-trial. 2011 U.S. App. LEXIS 19060, at *29 n.8 (9th Cir.
8 Sept. 16, 2011) (internal citations omitted). Here, “[u]nlike in Wal-Mart, where the injury suffered,
9 discrimination, happened at the hands of different supervisors in different regions without the link of a
10 common practice or policy, any injury suffered by a class member in this case stems from . . . a common
11 advertising campaign that had little to no variation.” Johnson v. Gen. Mills, Inc., 2011 U.S. Dist. LEXIS
12 103357, at *6 (C.D. Cal. Sept. 15, 2011) (denying motion for decertification in light of Wal-Mart
13 and Stearns). Accord Youngblood v. Family Dollar Stores, Inc., 2011 U.S. Dist. LEXIS 115389, at *13-14
14 (S.D.N.Y. Oct. 4, 2011) (“Unlike the claims in Wal-Mart, Plaintiffs’ [state law] claims do not require an
15 examination of the subjective intent behind millions of individual employment decisions; rather, the crux of
16 this case is whether the company-wide policies . . . violated Plaintiffs’ statutory rights.” (quotations and
17 citation omitted)); Jermyn v. Best Buy Stores, L.P., 2011 U.S. Dist. LEXIS 104449, at *16 (S.D.N.Y. Sept. 15,
18 2011) (an allegation that defendant had a uniform policy “is precisely what is missing in [Wal-Mart]”); Public
19 Employees Ret. Sys. of Miss. v. Merrill Lynch & Co, Inc., 2011 U.S. Dist. LEXIS 93222, at *26 (S.D.N.Y.
20 Aug. 22, 2011) (“Wal-Mart has no effect on the commonality determination in this case. The common
21 questions presented by this case—essentially, whether the Offering Documents were false or misleading in
22 one or more respects—are clearly susceptible to common answers.”); Smith v. Ceva Logistics U.S., Inc., 2011
23 U.S. Dist. LEXIS 111941, at *6-7 n.1 (C.D. Cal. Sept. 28, 2011) (“Ellis is inapposite because it raises
24 commonality issues not present in this case.”). See also Mathias v. Smoking Everywhere, Inc., 2011 U.S. Dist.
25 LEXIS 121687, at *4-6 (E.D. Cal. Oc.t 20, 2011) (finding commonality and typicality met based on evidence
26 of the content of Defendant’s website, which was alleged to contain misleading statements); Galvan v. KDI
27 Distribution, Inc., 2011 U.S. Dist. LEXIS 127602, at *7-8, 17-18 (C.D. Cal. Oct. 25, 2011). These cases
28 represent just a small sample of the many post-Wal-Mart decisions similarly distinguishing the decision.
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In re Ferrero Litigation, No. 11-205 (S.D. Cal.)
PLAINTIFFS’ REPLY IN SUPPORT OF MOTION FOR CLASS CERTIFICATION

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2 DATED: November 7, 2011

Respectfully Submitted,

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/s/ Jack Fitzgerald
Jack Fitzgerald

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THE WESTON FIRM
JACK FITZGERALD
GREGORY S. WESTON
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]
Interim Class Counsel

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In re Ferrero Litigation, No. 11-205 (S.D. Cal.)
PLAINTIFFS’ REPLY IN SUPPORT OF MOTION FOR CLASS CERTIFICATION