In re Ferrero Litigation
2011 U.S. Dist. LEXIS 131533
S.D. Cal.2011Background
- Consolidated consumer class action against Ferrero for Nutella labeled as healthy and nutritious.
- Plaintiffs allege deceptive labeling and advertising misled buyers nationwide since 2000.
- Two named plaintiffs—Athena Hohenberg and Laura Rude-Barbato—purchased Nutella for children.
- Claims include UCL, FAL, CLRA, express warranty, and implied warranty of merchantability.
- Plaintiffs seek nationwide restitution class and nationwide injunctive relief class; court later certifies a California class.
- Court grants motion for class certification after rigorous Rule 23 analysis and addresses class period and geographic scope.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Rule 23 requirements are met for certification | Hohenberg argues common misrepresentation supports common issues | Ferrero contends lack of common injury defeats commonality | Yes; common questions predominate; California class certified |
| Whether the California class satisfies predominance | Common advertising misrepresentation affects all California purchasers | Injury may be individualized; extraterritorial concerns | Predominance satisfied for California class; nationwide aspects limited |
| Whether a nationwide class is appropriate under due process | Shutdown concerns addressed by Shutts; substantial contacts exist | California law should not govern non-California residents | Nationwide California-subject class not approved; focus on California class only |
| Whether the class period is proper | Advertising began in August 2009; period extends later | Claims time-barred before 2009; shorter period appropriate | Class period start set August 2009; 4-year/3-year limitations govern respective claims |
| Whether class counsel and representatives are adequate | Court-appointed interim class counsel adequate | No adverse conflicts shown | Adequate representation; Weston Firm and Marrón appointed as class counsel |
Key Cases Cited
- Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011) (class certification requires common questions capable of class-wide resolution)
- Gen. Tel. Co. v. Falcon, 457 U.S. 147 (1982) (rigorous analysis required for Rule 23; merits related, not decided at certification)
- Hanlon v. Chrysler Corp., 150 F.3d 1011 (9th Cir. 1998) (commonality and typicality with plausible class-wide relief)
- Amchem Prods., Inc. v. Windsor, 521 U.S. 591 (1997) (predominance and superiority considerations for Rule 23(b)(3))
- Rodriguez v. Hayes, 591 F.3d 1105 (9th Cir. 2010) (named plaintiff must share at least one question of fact or law with class)