UNITED STATES DISTRICT COURT 

DISTRICT OF NEW JERSEY 

IN RE: 

NUTELLA MARKETING AND SALES 

PRACTICES LITIGATION 

Civil Action No. 11-1086(FLW)(DEA) 

--------------------------------------------------------------------------------------------------------------------- 

PLAINTIFFS’ BRIEF IN SUPPORT OF FINAL 

APPROVAL OF PROPOSED CLASS SETTLEMENT 

--------------------------------------------------------------------------------------------------------------------- 

James E. Cecchi 

Lindsey H. Taylor 

Donald A. Ecklund 

CARELLA, BYRNE, CECCHI, 

OLSTEIN, BRODY & AGNELLO 

5 Becker Farm Rd. 

Roseland, New Jersey 07068 

(973) 994-1700 

Christopher M. Burke 

SCOTT+SCOTT LLP 

707 Broadway, Suite 1000 

San Diego, CA 92101 

(619) 233-4565 

Joseph P. Guglielmo 

SCOTT+SCOTT LLP 

500 Fifth Avenue, 40th Floor 

New York, NY 10110 

(212) 223-6444 

Counsel for Plaintiffs and Class Counsel 

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TABLE OF CONTENTS 

PRELIMINARY STATEMENT .................................................................................................... 1 

FACTUAL BACKGROUND......................................................................................................... 3 

A. Factual and Procedural History........................................................................................... 3

B. Terms of the Settlement...................................................................................................... 6

C. Preliminary Approval and Notice to the Class ................................................................... 8

LEGAL ARGUMENT.................................................................................................................. 10

A. Standard of Review for Final Settlement Approval and Class Certification for 

Settlement Purposes.......................................................................................................... 10

B. Class Certification Should Be Granted for Settlement Purposes Under Rule 23 ............. 11

1. The Rule 23(a) Factors Are Met ................................................................................. 12 

2. The Rule 23(b)(3) Factors Are Met ............................................................................ 16 

C. The Proposed Settlement Is Fair, Reasonable and Adequate, Meriting Final Court 

Approval Under the Girsh Factors.................................................................................... 19

1. Complexity, Expense, and Likely Duration of the Litigation..................................... 20 

2. The Reaction of the Class to the Settlement ............................................................... 21 

3. The Stage of Proceedings and the Amount of Discovery Completed ........................ 22 

4. Risks of Establishing Liability.................................................................................... 23 

5. Risks of Establishing Damages................................................................................... 24 

6. Risks of Maintaining Class Action Status Through Trial........................................... 24 

7. Ability to Withstand Greater Judgment ...................................................................... 26 

8. The Range of Reasonableness of the Settlement Fund in Light of the Best 

Possible Recovery and All the Attendant Risks of Litigation .................................... 26

D. The Notice Program Satisfies Rule 23 and Due Process and Has Been Fully 

Implemented ..................................................................................................................... 28 

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TABLE OF AUTHORITIES

Page(s) 

CASES

Amchem Prods., Inc. v. Windsor, 

521 U.S. 591 (1997)......................................................................................................... passim

Ashcroft v. Iqbal, 

129 S.Ct. 1937 (2009)..............................................................................................................23 

Baby Neal v. Casey, 

43 F.3d 48 (3d Cir. 1994) ........................................................................................................12 

Barnes v. Am. Tobacco, Inc., 

161 F.3d 127 (3d Cir. 1998).....................................................................................................14 

Bell Atl. Corp. v. Bolger, 

2 F.3d 1304 (3d Cir. 1993).................................................................................................21, 22 

Carnegie v. Household Intern., Inc., 

376 F.3d 656 (7th Cir. 2004) ...................................................................................................25 

Danvers Motor Co. v. Ford Motor Co., 

543 F.3d 141 (3d Cir. 2008).....................................................................................................18 

District 1199P Health and Welfare Plan v. Janssen, L.P., 

No. 06-3044 (FLW), 2008 WL 5413105 (D.N.J. Dec. 23, 2008)............................................23 

Girsh v. Jepson, 

521 F.2d 153 (3d Cir. 1975).....................................................................................................24 

Hilao v. Estate of Marcos, 

103 F.3d 767 (9th Cir. 1996) ...................................................................................................25 

In re Am. Investors Life Ins. Co. Annuity Mktg. & Sales Practices Litig., 

263 F.R.D. 226 (E.D. Pa. 2009).............................................................................13, 14, 17, 26 

In re Cendant Corp. Litig., 

264 F.3d 201 (3d Cir. 2001)...................................................................................20, 22, 24, 26 

In re CertainTeed Corp. Roofing Shingle Products Liab. Litig., 

269 F.R.D. 468 (E.D. Pa 2010)................................................................................................21

In re Cmty. Bank of N. Virginia, 

418 F.3d 277 (3d Cir. 2005)............................................................................................. passim

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In re Epogen and Aranesp Off-Label Mktg. and Sales Pract. Litig., 

No. MDL 08-1934 PSG, 2009 WL 1703285 (C.D. Cal. June 17, 2009).................................23 

In re Gen. Motors Corp. Pick-Up Truck Fuel Tank Prods. Liab. Litig., 

55 F.3d 768 (3d Cir. 1995)............................................................................................... passim

In re Hydrogen Peroxide Antitrust Litig., 

552 F.3d 305 (3d Cir. 2008).....................................................................................................24 

In re Insurance Brokerage Antitrust Litig., 

MDL No. 1663, 2012 WL 1071240 (D.N.J. Mar. 30, 2012).............................................28, 30 

In re Kentucky Grilled Chicken Coupon Mktg. & Sales Practices Litig., 

MDL No. 2103, 2011 WL 5599129 (N.D. Ill. Nov. 16, 2011)................................................30 

In re LifeUSA Holding Inc., 

242 F.3d 136 (3d Cir. 2001).....................................................................................................25 

In re M3 Power Razor Sys. Mktg. & Sales Practice Litig., 

270 F.R.D. 45 (D. Mass. 2010)....................................................................................13, 15, 17 

In re Phillips/Magnavox Television Litig, 

Civil Action No. 09-3072 (CCC), 2012 WL 1677244 (D.N.J. May 14, 2012) .................17, 19 

In re Prudential Ins. Co. of Am. Sales Practice Litig., 

177 F.R.D. 216 (D.N.J. 1997)..................................................................................................29 

In re Prudential Ins. Co. of Am. Sales Practices Litig., 

148 F.3d 283 (3d Cir. 1998)............................................................................................. passim

In re Prudential Ins. Co. of Am. Sales Practices Litig., 

962 F. Supp. 450 (D.N.J. 1997), aff’d, 148 F.3d 283 (3d Cir. 1998).................................12, 22 

In re Sch. Asbestos Litig., 

921 F.2d 1330 (3d Cir. 1990)...................................................................................................10 

In re Warfarin Sodium Antitrust Litig., 

212 F.R.D. 231 (D. Del. 2002), aff’d 391 F.3d 516 (3d Cir. 2004).........................................24 

In re Warfarin Sodium Antitrust Litig., 

391 F.3d 516 (3d Cir. 2004)............................................................................................. passim

Ironworkers Local Union No. 68 v. AstraZeneca Pharm. LP, 

585 F. Supp. 2d 1339 (M.D. Fla. 2008)...................................................................................23 

Johnston v. HBO Film Mgmt., Inc., 

265 F.3d 178 (3d Cir. 2001)...............................................................................................14, 15 

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McLaughlin v. Am. Tobacco Co., 

522 F.3d 215 (2d Cir. 2008).....................................................................................................25 

Mullane v. Cent. Hanover Bank & Trust Co., 

339 U.S. 306 (1950).................................................................................................................28 

Newton v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 

259 F.3d 154 (3d Cir. 2001).....................................................................................................14 

Phillips Petroleum Co. v. Shutts, 

472 U.S. 797 (1985).................................................................................................................28 

Stewart v. Abraham, 

275 F.3d 220 (3d Cir. 2001).....................................................................................................12 

Stoetzner v. U. S. Steel Corp., 

897 F.2d 115 (3d Cir. 1990).....................................................................................................22 

Sullivan v. DB Investments, Inc., 

667 F.3d 273 (3d Cir. 2011).....................................................................................................16 

Weber v. Government Employees Ins. Co., 

262 F.R.D. 431 (D.N.J. 2009)......................................................................................12, 14, 17 

Weiss v. Mercedes-Benz of North America, Inc., 

899 F. Supp. 1297 (D.N.J. 1995) .......................................................................................22, 23 

STATUTES, RULES & REGULATIONS

United States Codes 

28 U.S.C. §1407.....................................................................................................................3, 4 

New Jersey State Statutes 

J.S.A. §§56:8–1, et seq..................................................................................................... passim

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Federal Rules of Civil Procedure 

Rule 23............................................................................................................................. passim

Rule 23(a)......................................................................................................................... passim

Rule 23(a)(2)............................................................................................................................12 

Rule 23(a)(3)............................................................................................................................14 

Rule 23(b) ..........................................................................................................................10, 11 

Rule 23(b)(3).................................................................................................................... passim

Rule 30(b)(6)..........................................................................................................................5, 6 

Rule 23(c)(2)(B).......................................................................................................................29 

Rule 23(c)(2)(B)(i)-(vii)...........................................................................................................29 

Rule 23(c)(3)............................................................................................................................28 

Rule 23(e).....................................................................................................................10, 19, 29 

Rule 23(e)(1) ...........................................................................................................................29 

Rule 23(f)...........................................................................................................................21, 25 

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PRELIMINARY STATEMENT

Plaintiffs Marnie Glover and Jayme Kaczmarek (“Plaintiffs”) hereby move pursuant to 

Fed. R. Civ. P. 23 for final approval of the Class Action Settlement Agreement (“Settlement”) 

(attached as Exhibit 1 to the Declaration of James E. Cecchi in Support of Plaintiffs’ Motion for 

Preliminary Approval of Proposed Class Settlement (ECF No. 62-3)) entered into with 

Defendant Ferrero U.S.A., Inc. (“Ferrero” or “Defendant”) in the above matter. The Settlement 

resolves the claims alleged in the complaints and includes all persons throughout the United 

States who purchased one or more of Defendant’s Nutella brand hazelnut spread products 

(“Nutella”) in any state other than California,1

 at any time from January 1, 2008 through the date 

of Preliminary Approval (“Class Period”), other than for resale or distribution (the “Class” or 

“Settlement Class Members”).2 Settlement at ¶21.GG. As is more fully set forth herein, the 

Settlement, which this Court preliminarily approved on February 3, 2012 (ECF No. 67), satisfies 

Rule 23 and is fair, reasonable and adequate, and therefore, should be granted final approval. 

This action challenges what Plaintiffs contend is the consistent deceptive marketing 

Ferrero has broadcast to the public – that Nutella is a healthy “hazelnut spread,” like peanut 

butter, and a good breakfast food, especially for children. ECF No. 1, ¶8. As part of its false 

advertising campaign, Plaintiffs allege Ferrero advertises to consumers that Nutella is 

wholesome and made with simple, quality ingredients, and that Nutella contributes to a balanced 

breakfast. Id., ¶9. In reality, however, Nutella is more like a dessert topping than a healthy 

breakfast spread. According to Plaintiffs, Nutella contains high levels of saturated fat, the 

 

1

 As the Court is aware, there is separate litigation involving California consumers pending 

in the United States District Court for the Southern District of California. That litigation is being 

settled separately before Judge Huff of the Southern District of California, but the two 

settlements will be jointly administered. 

 

2

 All capitalized terms are defined in the Settlement and have the same meaning herein. 

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consumption of which has been shown to cause heart disease and other serious health problems; 

and contains over 55% processed sugar, the consumption of which has been shown to cause type 

2 diabetes and other serious health problems. Id., ¶21. Indeed, Plaintiffs allege the nutritional 

value claimed, if any, is not derived from Nutella, but from other foods or drinks (e.g., whole 

grain breads, fruit and milk) that are advertised to be consumed along with Nutella. Id. In sum, 

Nutella is not healthy, and it is not appropriate to feed children for breakfast, contrary to 

Ferrero’s claims 

The Settlement has two components. First, the Settlement establishes a $2.5 million 

settlement fund for the benefit of Settlement Class Members who submit a simple Claim Form. 

Settlement Class Members with a valid Claim Form can receive up to $4 for each jar of Nutella 

purchased during the Class Period, up to a total of $20. Settlement at ¶48. Second, the 

Settlement also provides significant injunctive relief in the form of future prohibitions on the 

advertising at issue and a revised and corrective advertising campaign. Id. at ¶¶39-42. 

Plaintiffs’ expert, Peter L. Wright, opines that Ferrero’s new labeling and advertising campaign 

specifically remedies Ferrero’s previous portrayal of Nutella hazelnut spread as a healthy and 

nutritious breakfast food, which Plaintiffs allege was deceptive. See Declaration of Peter L. 

Wright (“Wright Decl.”). In light of the benefits achieved, Plaintiffs believe that the Settlement 

provides an excellent recovery for Settlement Class Members and falls within the range of 

reasonableness such that final approval is warranted. Accordingly, Plaintiffs seek entry of an 

Order in the form submitted herewith. 

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FACTUAL BACKGROUND

A. Factual and Procedural History 

On February 27, 2011, Plaintiff Marnie Glover filed an action in the United States 

District Court for the District of New Jersey, Glover v. Ferrero USA, Inc., Civil Action No. 11-

1086(FLW)(DEA), bringing claims on behalf of a nationwide class under the New Jersey 

Consumer Fraud Act (“NJCFA”), N.J.S.A. §§56:8–1, et seq., breach of contract and breach of 

express and implied warranty (the “Complaint”).3

 The Complaint alleges Defendant deceptively 

markets, advertises, and sells Nutella as a “healthy” and “nutritious” food, but omits that the 

nutritional value claimed, if any, is not derived from Nutella, but is instead from the other foods 

or drinks (e.g., whole grain breads, fruit, and milk) that are advertised to be consumed along with 

Nutella. ECF No. 1, ¶¶8-10. The Complaint further alleges that Ferrero made such 

representations in print, television, and point-of-sale advertising, as well as on the label of the 

product to Plaintiffs and other consumers during the Class Period. Id. 

On April 11, 2011, Plaintiff Glover filed a motion with the Judicial Panel on Multidistrict 

Litigation (“JPML”) requesting centralization of this action and a putative class action pending 

in California alleging similar claims, In re Ferrero Litigation, No. 3:11-cv-00205(H) (S.D. Cal.) 

(“In re Ferrero”), under 28 U.S.C. §1407 for pre-trial proceedings in this District, where Ferrero 

is headquartered and where it conducted the majority of the activities complained of in the 

actions. MDL No. 2248, ECF No. 1. Following oral argument held on July 28, 2011, the JPML 

denied Plaintiff Glover’s motion for centralization, finding that, while the actions shared 

 

3

 Plaintiffs also refer the Court to the Declaration of James E. Cecchi in Support of Final 

Approval of Proposed Class Settlement and in Support of Application for Award of Attorneys’ 

Fees, Reimbursement of Expenses and Approval of Incentive Awards (“Cecchi Decl.”) in 

support of the facts, procedural history and settlement terms discussed herein. 

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common factual questions, the questions are not sufficiently complex or numerous to justify 

§1407 transfer. MDL No. 2248, ECF No. 28. 

In the interim, on May 2, 2011, the plaintiffs in In re Ferrero (“Proposed Intervenors”) 

sought to intervene in Glover for the purposes of having it dismissed. ECF No. 21. Plaintiff 

Glover opposed the motion to intervene on May 23, 2011. ECF Nos. 30-31. On May 9, 2011, 

Ferrero filed a motion to dismiss the Complaint (ECF No. 24), which Plaintiff Glover opposed 

on June 6, 2011. ECF No. 35. On July 26, 2011, Plaintiff Jayme Kaczmarek filed her 

complaint, Kaczmarek v. Ferrero USA, Inc., Civil Action No. 11-4353(FLW), asserting claims 

on behalf of a nationwide class for violations of the NJCFA, breach of express and implied 

warranties, negligent misrepresentation, intentional misrepresentation, and for injunctive and 

declaratory relief. On August 23, 2011, Plaintiff Kaczmarek sought consolidation of Kaczmarek

with Glover and appointment of Scott+Scott LLP (“Scott+Scott”) and Carella, Byrne, Cecchi, 

Olstein, Brody & Agnello (“Carella, Byrne”) as interim lead counsel. No. 11-4353, ECF No. 3. 

On September 6, 2011, the Court entered an order consolidating the Glover and Kaczmarek

actions under the caption In re Nutella Marketing and Sales Practices Litigation, and appointed 

Scott+Scott and Carella, Byrne as interim lead counsel (“Class Counsel”) for the putative class. 

ECF No. 41. Thereafter, Plaintiffs informed Defendant and the Court of their intent to file a 

Consolidated Amended Complaint and, as a result, the Court terminated Ferrero’s pending 

motion to dismiss, providing Ferrero leave to renew its motion to dismiss after Plaintiffs file their 

Consolidated Amended Complaint (which has been postponed pending settlement negotiations). 

ECF Nos. 41, 58. 

On September 9, 2011, Proposed Intervenors filed a second motion to intervene for the 

purpose of filing a motion to dismiss both Glover and Kaczmarek, pursuant to the first-filed rule. 

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ECF No. 42. Proposed Intervenors’ second motion to intervene was substantially similar to their 

initial motion in that their stated interest in intervening was for the sole purpose of dismissing 

this action or transferring it to California. Plaintiffs opposed this motion on September 19, 2011, 

ECF Nos. 48-49, and Proposed Intervenors filed a surreply on September 26, 2011. ECF No. 50. 

The Court denied both motions to intervene on October 20, 2011. ECF Nos. 53-54. 

Plaintiffs have developed an in-depth understanding of the strengths and weaknesses of 

the claims, as well as the viability of the defenses put forward by Defendant through party and 

third-party discovery. On June 9, 2011, Plaintiff Glover served Defendant with requests for 

production of documents, interrogatories, and a notice of deposition pursuant to Rule 30(b)(6). 

On June 23, 2011, Plaintiff Glover issued subpoenas for production of documents to third parties 

Merkely + Partners, Vision Creative Group, MS&L, and Zenith Optimedia. Thereafter, Plaintiff 

Glover issued a subpoena for documents and testimony to Connie Evers, the nutritional 

spokesperson for Ferrero’s advertising and marketing campaign for Nutella. Plaintiff Glover 

deposed Ms. Evers in Portland, Oregon on July 26, 2011. Plaintiffs also issued a subpoena for 

documents and testimony to Isabelle Lambotte, who was involved in Defendant’s marketing and 

advertising campaign. Plaintiffs deposed Ms. Lambotte on October 4, 2011. Defendant and 

third parties have produced approximately 53,000 pages of documents. 

On August 8, 2011, Defendant served Plaintiff Glover with a set of interrogatories, to 

which Plaintiff Glover responded on September 6, 2011. Defendant also served Plaintiff Glover 

with a set of document requests on October 4, 2011, but the parties agreed to postpone Plaintiff 

Glover’s responses to the document requests during the ongoing settlement process. 

While engaging in motion practice and discovery, the parties agreed to mediate before the 

late Honorable Nicholas J. Politan. The parties conducted two in-person mediations before 

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Judge Politan on October 10, 2011 in New York, New York, and on November 2, 2011 in West 

Palm Beach, Florida. These sessions resulted in the Settlement, which provides substantial 

injunctive and monetary benefits that Plaintiffs and Class Counsel believe is fair, reasonable, and 

adequate, and is in the best interests of Plaintiffs and the Settlement Class Members. 

B. Terms of the Settlement 

Under the terms of the Settlement, the parties have agreed that Defendant will pay 

$2,500,000 (the “Cash Settlement Amount”) for distribution to Settlement Class Members who 

submit a valid Claim Form. Settlement at ¶43. Settlement Class Members can submit a claim 

for up to $4 per jar purchased during the Class Period up to a maximum of $20, subject to pro 

rata reduction based on if the aggregate number of claims exceeds the Settlement Fund. Id. at 

¶48. Defendant also agrees to substantial injunctive provisions that remove the advertising 

Plaintiffs claim is deceptive. Defendant agrees to revise its labeling and print and media 

advertising to reflect the changes agreed to as well as modify the content on the website for 

Nutella (“Injunctive Relief”). Id. at ¶¶39-42. The Cash Settlement Amount and Injunctive 

Relief serve as full consideration for dismissal of this action against Defendant. The parties have 

agreed to provide each other with full, mutual claim releases. Id. at ¶¶66-67. The Claims 

Administrator shall administer the funds to Settlement Class Members, which are to be paid out 

of the Gross Settlement Fund. Id. at ¶46. Notably, none of the Cash Settlement Amount will 

revert to Defendant. Id. at ¶49. Plaintiffs’ expert, Peter L. Wright, evaluated Plaintiffs’ claims, 

marketing-related documents produced by Ferrero during the litigation and Ferrero’s revised 

label, website and proposed final scripts for new commercials and concluded that Ferrero’s new 

marketing program “will significantly correct prior misimpressions” and “will not in the future 

mislead reasonable consumers regarding Nutella’s nutritional value and role in a healthy 

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breakfast.” Wright Decl. at ¶13(a)-(b). Mr. Wright opines that Ferrero’s new advertising 

campaign “will effectively educate reasonable consumers about how to do practical, balanced, 

and nutritional breakfast planning, which may (or may not) include Nutella.” Id. at ¶13(c). Mr. 

Wright describes Ferrero’s corrective marketing approach as “state-of-the-art,” Wright Decl. at 

¶13(d), explaining: 

In my opinion, the changes Ferrero proposes for its labeling, television 

advertising and website are likely, in toto, to significantly decrease the number of 

consumers who are misled about Nutella’s nutritional value and about its role as 

part of a breakfast if added to other already-nutritious foods. From a 

communication standpoint, the proposed changes are substantial and provide 

significant benefits. The new materials are attention getting, focused, clear in 

language and narrative, and well integrated across media. The labeling will 

incorporate the Grocery Manufacturer’s Association nutritional labeling program. 

The television ads avoid making an explicit or implied claim that Nutella is in and 

of itself a nutritious addition to a breakfast. They instead confine the claim to the 

more valid representation that Nutella can be added to an already-nutritious 

breakfast to make it tastier and more appealing to family members. Similarly, the 

proposed changes in the website materials are consistent with the overall message 

central to the proposed new television ads and label. As a result of the Settlement 

Agreement, Ferrero will have created a multi-media campaign that is highly 

integrated. This integration is of great benefit to consumers. Each medium by 

itself delivers the same basic message in a clear, conspicuous, readily 

comprehended way, and the combined effect of a consumer’s exposures to these 

redundancies across the different media (ads, labels, website) is likely to 

substantially enhance consumer understanding of how to do effective nutritionalbeneficial breakfast planning. 

Id. at ¶14. 

Additionally, subject to this Court’s approval, Defendant has agreed not to oppose Class 

Counsel’s request for: (i) a fee award to be paid by Defendant or its insurance carrier not to 

exceed $3,000,000 in connection with the Injunctive Relief obtained (“Injunctive Fee Award”); 

and (ii) reasonable attorneys’ fees up to 30% of the Gross Settlement Fund created by Defendant 

and reimbursement of expenses (“Cash Settlement Amount Fee Award”). Id. at ¶¶50-51. 

Finally, subject to this Court’s approval, Defendant has agreed that Plaintiffs may apply for an 

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Incentive Award by the Court for their efforts on this litigation not to exceed $2,000 each. Id. at 

¶56. Class Counsel is submitting a separate application for an award of reasonable attorneys’ 

fees, reimbursement of expenses and approval of incentive awards to the Class Representatives. 

C. Preliminary Approval and Notice to the Class 

On February 3, 2012, this Court preliminarily approved the Settlement; found on a 

preliminary basis that the requirements of Rules 23(a) and 23(b)(3) are satisfied; and 

conditionally certified the following Class: 

[A]ll persons throughout the United States who purchased one or more of 

Defendant’s Nutella brand hazelnut spread products (“Nutella”) in any state other 

than California, at any time from January 1, 2008 through the date of Preliminary 

Approval (the “Class Period”), other than for resale or distribution. Excluded 

from the Settlement Class Members are: Ferrero; Defense Counsel; any judge 

presiding over any of the actions that together comprise the Actions or Related 

Actions; and any immediate family member of any such person(s). 

ECF No. 67 at ¶¶2-4 (“Preliminary Approval Order”). The Court also appointed Plaintiffs 

Glover and Kaczmarek as Class Representatives; Carella, Byrne and Scott+Scott as Class 

Counsel; and Rust Consulting, Inc. as the Claims Administrator. Id. at ¶¶4, 6. Further, the Court 

approved the Settlement Notices and the Notice Program. Id. at 4. 

 Pursuant to the Court’s Preliminary Approval Order, ¶6, Rust caused the Publication 

Notice, in substantially the same form as preliminarily approved, see ECF No. 67 at ¶5, to be 

published in the following magazines: Parents (May 2012 issue), People (April 16, 2012 issue), 

Ser Padres (May 2012 issue) and Woman’s Day (May 2012 issue) as well as on the following 

third-party websites: 24/7 Real Media Network – Parenting Channel (5,000,000 impressions 

from April 6, 2012 through April 20, 2012) and Facebook (10,000,000 impressions from April 6, 

2012 through April 20, 2012). See Affidavit of Charlene Young re: Dissemination of Notice of 

Class Settlement, and Information Regarding Claims Submitted to Date (“Young Affidavit”), ¶3 

and Exhibits 2 and 3. 

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Pursuant to the Court’s Preliminary Approval Order, ¶6, Rust also established a dedicated 

settlement website (“Settlement Website”), www.nutellaclassactionsettlement.com, which went 

“live” on March 2, 2012 and contains the Settlement Agreement, Class Notice, and information 

relating to filing a claim, opting out of the Settlement, objecting to the Settlement, deadlines 

relating to the Settlement, Frequently Asked Questions and other information relevant to the 

Settlement. Id. at ¶4 and Exhibit 4. The Settlement Website also contains an electronic Claim 

Form to allow on-line submissions of claims as well as a Claim Form which can be downloaded, 

printed, and mailed to the Claims Administrator. Id. As of May 23, 2012, the website has been 

visited approximately 1,078,410 times. Id. 

Rust also maintains a case-dedicated P.O. box for claimant inquiries, Young Affidavit at 

¶5, and a case-dedicated toll-free telephone number, 877-497-5858, with a pre-recorded message 

that answers frequently asked questions, and prompts the caller to press a telephone keypad 

number to request a Notice Packet be mailed to their address or to leave a message requesting a 

return call from a representative. Id. at ¶6. As of May 23, 2012, approximately 1,264 calls have 

been received. Id. Of those, 619 potential claimants have requested Notice Packets. Id. 

Between April 19, 2012 and May 23, 2012, Rust mailed 615 Notice Packets. Id. 

As of May 23, 2012, Rust has received 253,413 claims from potential Settlement Class 

Members, although the final deadline for submission is July 5, 2012. Id. at ¶10. As of May 23, 

2012, no objections and five (5) requests for exclusion have been received by Rust or filed with 

the Court, although the deadline to do so is June 8, 2012. Id. at ¶¶8-9. 

Class Counsel submit that the Settlement satisfies Rule 23 and is fair, reasonable, and 

adequate, and therefore, should be granted final approval. 

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LEGAL ARGUMENT

A. Standard of Review for Final Settlement Approval and Class Certification for 

Settlement Purposes 

 Plaintiffs move under Rule 23 for final approval of the Settlement and certification of a 

class for settlement purposes only (“Settlement Class”). As discussed in detail below, final 

approval of a class action settlement involves two fundamental inquiries. First, the Court must 

determine whether a class can be certified under Rule 23(a) and at least one prong of Rule 23(b). 

Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 620 (1997). The second inquiry is whether the 

proposed settlement appears “fair, reasonable and adequate.” Fed. R. Civ. P. 23(e); In re 

Warfarin Sodium Antitrust Litig., 391 F.3d 516, 534 (3d Cir. 2004). In determining whether to 

approve a settlement, the Third Circuit has noted that “there is an overriding public interest in 

settling class action litigation, and it should therefore be encouraged.” Id. at 535; see also In re 

Gen. Motors Corp. Pick-Up Truck Fuel Tank Prods. Liab. Litig., 55 F.3d 768, 784 (3d Cir. 1995) 

(“The law favors settlement, particularly in class actions and other complex cases where 

substantial judicial resources can be conserved by avoiding formal litigation.”); In re Sch. 

Asbestos Litig., 921 F.2d 1330, 1333 (3d Cir. 1990) (noting Third Circuit’s policy of 

“encouraging settlement of complex litigation that otherwise could linger for years”); In re Cmty. 

Bank of N. Virginia, 418 F.3d 277, 299 (3d Cir. 2005) (“‘all Federal Circuits recognize the utility 

of ... settlement classes’ as a means to facilitate the settlement of complex nationwide class 

actions”).4

 In light of this public policy in favor of settlement generally and because this 

Settlement meets the Rule 23 requirements, the Settlement should be approved and the 

Settlement Class certified. 

 

4

 Unless otherwise noted, all citations are omitted and emphasis is added. 

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B. Class Certification Should Be Granted for Settlement Purposes Under Rule 23 

 

Class certification under Rule 23 has two primary components. First, the party seeking 

class certification must first establish the four requirements of Rule 23(a): “(1) numerosity (a 

‘class [so large] that joinder of all members is impracticable’); (2) commonality (‘questions of 

law or fact common to the class’); (3) typicality (named parties’ claims or defenses ‘are 

typical . . . of the class’); and (4) adequacy of representation (representatives ‘will fairly and 

adequately protect the interests of the class’).” Warfarin Sodium, 391 F.3d at 527. Second, the 

Court must find that the class fits within one of the three categories of class actions set forth in 

Rule 23(b). Cmty. Bank, 418 F.3d at 302. In the present case, Plaintiffs seek certification under 

Rule 23(b)(3), “the customary vehicle for damage actions.” Id. Rule 23(b)(3) requires that 

common questions “‘predominate over any questions affecting only individual members’” and 

that class resolution be “‘superior to other available methods for the fair and efficient 

adjudication of the controversy.’” Amchem, 521 U.S. at 592-93. 

In making this analysis, the district court may take the proposed settlement into 

consideration. In re Prudential Ins. Co. of Am. Sales Practices Litig., 148 F.3d 283, 308 (3d Cir. 

1998); Cmty. Bank, 418 F.3d at 300. In this respect, there is one material difference between the 

certification of litigation classes and settlement classes: 

Whether trial would present intractable management problems . . . is not a 

consideration when settlement-only certification is requested, for the proposal is 

that there be no trial. 

Amchem, 521 U.S. at 620; Cmty. Bank, 418 F.3d at 309. “The difference is key.” Warfarin 

Sodium, 391 F.3d at 529. For example, the Third Circuit has explained that: 

In certification of litigation classes for claims arising under the laws of the fifty 

states, [the Third Circuit has] noted that the district court must determine whether 

variations in state laws present the types of insuperable obstacles which render 

class action litigation unmanageable ... However, when dealing with variations in 

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state laws, the same concerns with regards to case manageability that arise with 

litigation classes are not present with settlement classes, and thus those variations 

are irrelevant to certification of a settlement class. 

Id. As discussed below, all the Rule 23 requirements are met. 

 1. The Rule 23(a) Factors Are Met 

 a. Numerosity 

“To meet the numerosity requirement, class representatives must demonstrate only that 

‘common sense’ suggests that it would be difficult or inconvenient to join all class members.” In 

re Prudential Ins. Co. of Am. Sales Practices Litig., 962 F. Supp. 450, 510 (D.N.J. 1997), aff’d, 

148 F.3d 283 (3d Cir. 1998). Here, Plaintiffs easily establish the numerosity requirement. 

Further, 619 Notice Packets were specifically requested by potential Settlement Class Members 

and were mailed, there were 1,078,410 visits to the Settlement Website and 253,413 claims have 

been submitted thus far. Young Affidavit at ¶¶4, 6, 10. Given this data, the number of class 

members far exceeds that which would be necessary to satisfy the numerosity requirement. See 

Stewart v. Abraham, 275 F.3d 220, 226-27 (3d Cir. 2001) (numerosity requirement satisfied “if 

the named plaintiff demonstrates that the potential number of plaintiffs exceeds 40”); Weber v. 

Government Employees Ins. Co., 262 F.R.D. 431, 442 (D.N.J. 2009) (class of 975 members in 

NJCFA action satisfied numerosity). 

 b. Commonality 

“Rule 23(a)(2)’s commonality element requires that the proposed class members share at 

least one question of fact or law in common with each other.” Warfarin Sodium, 391 F.3d at 

527-28. “Because the [commonality] requirement may be satisfied by a single common issue, it 

is easily met.” Baby Neal v. Casey, 43 F.3d 48, 56 (3d Cir. 1994). Here, the Settlement Class 

Members share many common issues of law and fact. All Settlement Class Members were 

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subjected to the same advertised claims relating to Nutella’s nutritional qualities, whether on the 

labeling, website, television commercials, or point-of-sale advertising, which were uniformly 

broadcast to all Settlement Class Members. All Settlement Class Members also were, and are, 

similarly affected by having purchased Nutella for its intended and foreseeable purpose as 

promoted, marketed, advertised, packaged and labeled by Defendant. Thus, questions of law and 

fact are common to all Settlement Class Members: 

(a) whether Defendant misrepresented or omitted material facts in connection 

with the promotion, marketing, advertising, packaging, labeling, and sale of Nutella; 

(b) whether Defendant represented that Nutella has characteristics, benefits, uses, 

or qualities that it does not have; 

(c) whether Defendant’s acts and practices in connection with the promotion, 

marketing, advertising, packaging, labeling, distribution and sale of Nutella violated the 

NJCFA; 

(d) whether Defendant’s acts and practices in connection with the promotion, 

marketing, advertising, packaging, labeling, and sale of Nutella breached their express 

and implied warranties to Plaintiffs and the Class; and 

(e) whether Defendant’s conduct, as set forth herein, injured members of the Class 

and whether they have been damaged by the wrongs complained of herein, and if so, the 

measure of those damages and the nature and extent of other relief that should be 

provided. 

In light of these common questions of fact and law, commonality is satisfied. See, e.g., In re Am. 

Investors Life Ins. Co. Annuity Mktg. & Sales Practices Litig., 263 F.R.D. 226, 246 (E.D. Pa. 

2009) (finding commonality requirement satisfied where “plaintiffs would need to establish 

whether the defendants developed, used, and taught deceptive practices to the sales agents and 

whether the defendants created or approved deceptive materials to be distributed to all 

purchasers”); see also In re M3 Power Razor Sys. Mktg. & Sales Practice Litig., 270 F.R.D. 45, 

54 (D. Mass. 2010) (commonality requirement in MDL’d consumer protection class action 

satisfied where “whether Gillette misrepresented the capabilities of the M3P razor to the 

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potential class, whether the potential class members sustained ascertainable damages from such 

conduct, and, if so, in what amount” were “common core questions”). 

 c. Typicality 

In considering typicality under Rule 23(a)(3), the court must determine whether “‘the 

named plaintiffs[’] individual circumstances are markedly different or ... the legal theory upon 

which the claims are based differs from that upon which the claims of other class members will 

perforce be based.’” Johnston v. HBO Film Mgmt., Inc., 265 F.3d 178, 184 (3d Cir. 2001). 

Typicality does not require that all class members share identical claims. Id. So long as “the 

claims of the named plaintiffs and putative class members involve the same conduct by the 

defendant, typicality is usually established regardless of factual differences.” Newton v. Merrill 

Lynch, Pierce, Fenner & Smith, Inc., 259 F.3d 154, 183-84 (3d Cir. 2001); Barnes v. Am. 

Tobacco, Inc., 161 F.3d 127, 141 (3d Cir. 1998). 

Here, where the Settlement Class Members all purchased Nutella with the alleged 

misrepresentations on its label and were exposed to Defendant’s uniform deceptive advertising, 

marketing, and promotional campaign, typicality is satisfied. ECF No. 1, ¶85. Because the 

claims of Plaintiffs and the Settlement Class Members “all arise from the alleged 

misrepresentations by [Ferrero],” the typicality requirement is met. Johnston, 265 F.3d at 185. 

See also Weber, 262 F.R.D. at 442 (typicality satisfied where named Plaintiffs alleged they 

suffered harm as a result of the same conduct that injured absentee class members); Am. 

Investors Life Ins., 263 F.R.D. at 246 (“all of the plaintiffs’ claims arise from the same allegation 

that the defendants engaged in a scheme to sell long-term deferred annuities to purchasers by 

using fraudulent misrepresentations. Because this matter challenges the defendants’ uniform 

course of conduct as it affects the entire class, the class satisfies typicality”); M3 Power Razor, 

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270 F.R.D. at 55 (finding typicality requirement satisfied where “the claims of the 

Representative Plaintiffs are based on the same event (purchase of an M3P razor based on 

misleading advertisements) as the potential class members”). 

 d. Adequacy 

The adequacy requirement has two components intended to ensure that the absentees’ 

interests are fully pursued: (a) the named plaintiffs’ interests must be sufficiently aligned with 

the interests of the absentees, and (b) the plaintiffs’ counsel must be qualified to represent the 

class. GM Trucks, 55 F.3d at 800. 

As for the first component, the court must determine whether “the representatives’ 

interests conflict with those of the class.” Johnston, 265 F.3d at 185. There is no conflict 

between the proposed Class Representatives and the Class. Indeed, Plaintiffs Glover and 

Kaczmarek are typical consumers who purchased Nutella during the Class Period and share the 

same interests as other Class Members in seeking to have the allegedly deceptive advertising of 

the product stopped and seeking a recovery for deceived class members. See, e.g., M3 Power 

Razor, 270 F.R.D. at 55 (“the Representative Plaintiffs’ interests generally align with the class as 

a whole, because all parties, named and unnamed, are seeking redress from what is essentially 

the same injury, the purchase of an M3P razor based on misleading advertisements.”). 

As far as the adequacy of counsel is concerned, the Class is represented by Scott+Scott 

and Carella, Byrne, law firms with national reputations in the class action field. Moreover, 

Carella, Byrne has been in leadership positions in many of the most significant class actions filed 

and resolved in this District, including O’Brien v. LG Electronics USA, Inc., No. 10-cv-03733 

(DMC)(JAD). Prelim. Approval Cecchi Decl., Exhibit 2 (ECF No. 62-12). As is explained in 

detail in the firm résumé, Scott+Scott has extensive experience handling class actions and other 

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complex litigation, and claims of the type asserted in this action specifically. Prelim. Approval 

Cecchi Decl., Exhibit 3 (ECF No. 62-13). Scott+Scott also has served as lead or co-lead counsel 

in many high-profile class actions in this District, including In re Aetna UCR Litig., MDL No. 

2020, Master File No. 07-3541 (SRC)(PS). This Court previously reviewed and considered, and 

is thus acquainted with, the relevant qualifications and experience of Scott+Scott and Carella, 

Byrne and appointed these firms as interim lead counsel for the putative class, see ECF No. 41, 

and preliminarily approved these firms as Class Counsel. See ECF No. 67 at 4. 

 Accordingly, both prongs of the adequacy inquiry are satisfied. 

 2. The Rule 23(b)(3) Factors Are Met 

a. Predominance 

As the Supreme Court explained in Amchem, “[p]redominance is a test readily met in 

certain cases alleging consumer fraud ... .” 521 U.S. at 625. “This is even more true in a 

settlement-only class action, where the court certifying the class need not examine issues of 

manageability.” Cmty. Bank, 418 F.3d at 306. The Third Circuit just recently reaffirmed the 

principles that inform the predominance analysis when considering certification of a settlement 

class: 

From our case law, we can distill at least three guideposts that direct the 

predominance inquiry: first, that commonality is informed by the defendant’s 

conduct as to all class members and any resulting injuries common to all class 

members; second, that variations in state law do not necessarily defeat 

predominance; and third, that concerns regarding variations in state law largely 

dissipate when a court is considering the certification of a settlement class. 

Sullivan v. DB Investments, Inc., 667 F.3d 273, 297 (3d Cir. 2011). Here, Plaintiffs have alleged 

claims on behalf of a nationwide class under the NJCFA and for breach of express and implied 

warranties. Because Plaintiffs seek certification of a settlement-only class, the existence of any 

individual inquiry does not preclude class action treatment where all class members face the 

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necessity of proving the same fraudulent scheme. Cmty. Bank, 418 F.3d. at 309; see also 

Prudential, 148 F.3d at 315 (“‘presence of individual questions as to the reliance of each 

[plaintiff] does not mean that the common questions of law and fact do not predominate’”). 

 “Courts have found that cases alleging a common scheme of deception through the use of 

uniform misrepresentations and omissions satisfy the predominance requirement.” Am. Investors 

Life Ins., 263 F.R.D. at 236 (citing cases). For instance in Warfarin Sodium, the Third Circuit 

affirmed the district court’s ruling that class members shared predominantly common issues 

where the corporate defendant allegedly employed a deceptive “broad-based, national campaign 

conducted by and directed from corporate headquarters,” such that proof of liability of the 

defendant’s conduct would be shown with “evidence which is common to the class members” 

because “liability depends on the conduct of [the defendant], and whether it conducted a 

nationwide campaign of misrepresentation and deception, [and] does not depend on the conduct 

of individual class members.” 391 F.3d at 528-30. Similarly, here, the core, overriding questions 

in this case relate to Defendant’s deceptive labels, marketing, and advertising, which contain 

uniform and nationally disseminated messages, and whether those representations violated the 

law. Thus, the predominance factor is satisfied. See, e.g., In re Phillips/Magnavox Television 

Litig, Civil Action No. 09-3072 (CCC), 2012 WL 1677244, at *7 (D.N.J. May 14, 2012) 

(predominance satisfied where central legal question as to the defendant’s conduct was common 

to all class members’ claims); Weber, 262 F.R.D. at 443 (same); M3 Power Razor, 270 F.R.D. at 

56 (finding the predominance requirement satisfied where “[t]he dominant common questions 

include whether Gillette’s advertising was false or misleading, whether the company’s conduct 

violated the statutory and/or common law causes of action delineated in the Amended 

Complaint, and whether the class members suffered damages as a result of this conduct.”). 

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 b. Superiority

Rule 23(b)(3) also requires a finding that “a class action [be] superior to other available 

methods for the fair[] and efficient[] adjudicati[on] [of] the controversy.” The following factors 

are relevant to the superiority inquiry: 

(A) the class members’ interests in individually controlling the prosecution or 

defense of separate actions; (B) the extent and nature of any litigation concerning 

the controversy already begun by or against class members; (C) the desirability or 

undesirability of concentrating the litigation of the claims in the particular forum; 

(D) the likely difficulties in managing a class action. 

Id.; Danvers Motor Co. v. Ford Motor Co., 543 F.3d 141, 149 (3d Cir. 2008). 

Applying these factors in Warfarin Sodium, the Third Circuit held that the superiority 

requirement was satisfied in light of the “potentially large number of class members . . . 

including some 2 million consumers and potentially thousands of TPPs.” 391 F.3d at 534. 

“Individual consumer class members [had] little interest in ‘individually controlling the 

prosecution or defense of separate actions,’ because each consumer [had] a very small claim in 

relation to the cost of prosecuting a lawsuit.” Id. “Thus, from the consumers’ standpoint, a class 

action facilitate[d] spreading of the litigation costs among the numerous injured parties and 

encourage[d] [the] private enforcement of the statutes.” Id. The “relatively small number of 

individual lawsuits pending against [the defendant] indicated . . . that there was a lack of interest 

in individual prosecution of claims.” Id. Finally, the court cited the district court’s finding that 

“it was desirable to concentrate litigation in Delaware, where [the defendant] had its principal 

place of business and where several initial class action lawsuits had been filed.” Id. In 

Prudential, the Third Circuit cited the same factors, as well as the avoidance of “a potentially 

great strain on judicial resources.” Prudential, 148 F.3d at 316. 

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The reasoning of these cases is directly applicable here, where the Class numbers in the 

hundreds of thousands, and, absent class treatment, these Settlement Class Members would never 

have their day in court because individual suits would be cost-prohibitive given the relatively 

small amounts at stake. As the Supreme Court explained in Amchem: 

“The policy at the very core of the class action mechanism is to overcome the 

problem that small recoveries do not provide the incentive for any individual to 

bring a solo action prosecuting his or her rights. A class action solves this 

problem by aggregating the relatively paltry potential recoveries into something 

worth someone’s (usually an attorney’s) labor.” 

521 U.S. at 617. Even if this were not the case, thousands upon thousands of individual trials 

would impose a massive burden on the Court’s resources. By contrast, this settlement makes 

manageability concerns irrelevant because “the proposal is that there be no trial.” Amchem, 521 

U.S. at 620. Finally, it is desirable to concentrate this litigation in New Jersey, where Defendant 

admits the marketing and advertising at issue were created and disseminated, as alleged. ECF 

No. 1, ¶¶2, 5. See, e.g., Phillips/Magnavox, 2012 WL 1677244, at *7 (“To litigate the individual 

claims of even a tiny fraction of the potential Class Members would place a heavy burden on the 

judicial system and require unnecessary duplication of effort by all parties.”). 

In short, this case meets all the requirements for the certification of a settlement class 

under Rule 23(a) and (b)(3). 

C. The Proposed Settlement Is Fair, Reasonable and Adequate, Meriting Final Court 

Approval Under the Girsh Factors 

Rule 23(e) requires a determination by the district court that the proposed settlement is 

“‘fair, reasonable and adequate.’” GM Trucks, 55 F.3d at 785. The Third Circuit has adopted a 

nine-factor test to determine whether a settlement is “fair, reasonable, and adequate.” The 

elements of this test – known as the “Girsh factors” – are: 

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(1) the complexity and duration of the litigation; (2) the reaction of the class to the 

settlement; (3) the stage of the proceedings; (4) the risks of establishing liability; 

(5) the risks of establishing damages; (6) the risks of maintaining a class action; 

(7) the ability of the defendants to withstand a greater judgment; (8) the range of 

reasonableness of the settlement in light of the best recovery; and (9) the range of 

reasonableness of the settlement in light of all the attendant risks of litigation. 

GM Trucks, 55 F.3d at 785 (citing Girsh v. Jepson, 521 F.2d 153, 157 (3d Cir. 1975)). The 

Settlement meets each of these factors, and thus, should be approved. 

1. Complexity, Expense, and Likely Duration of the Litigation 

The first Girsh factor “captures ‘the probable costs, in both time and money, of continued 

litigation.’” In re Cendant Corp. Litig., 264 F.3d 201, 233 (3d Cir. 2001). “By measuring the 

costs of continuing on the adversarial path, a court can gauge the benefit of settling the claim 

amicably.” GM Trucks, 55 F.3d at 812. This factor undoubtedly weighs in favor of settlement. 

In Warfarin Sodium, the parties already had litigated the case for three years. 391 F.3d at 

537. Nevertheless, the court concluded that the first Girsh factor was satisfied: 

We agree with the District Court’s conclusion that this factor favors settlement 

because continuing litigation through trial would have required additional 

discovery, extensive pretrial motions addressing complex factual and legal 

questions, and ultimately a complicated, lengthy trial. Moreover, it was inevitable 

that post-trial motions and appeals would not only further prolong the litigation but 

also reduce the value of any recovery to the class. In a class action of this 

magnitude, which seeks to provide recovery for Coumadin consumers and TPPs 

nationwide, the time and expense leading up to trial would have been significant. 

Id. at 536. In this Nutella litigation, the path from this stage of the litigation to a final judgment 

is likely to be equally long. This case has been pending for approximately one year. The 

Consolidated Amended Complaint has yet to be filed (as the date for filing it has been postponed 

pending settlement negotiations). See ECF Nos. 58, 60. Additional party and non-party 

discovery would be sought, requiring time-consuming review. The case also would require 

extensive expert analysis of the nutritional qualities of Nutella as well as the consumer impact of 

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Defendant’s representations regarding the product’s purported nutritional attributes. The case 

likely would shape up to be a battle of the experts, and thus, expert expenses would be 

substantial. As a putative nationwide class action, complex legal and factual issues would be the 

subject of pretrial motions, including for class certification. The class certification decision 

likely would lead to the inevitable Rule 23(f) interlocutory appeal, potentially delaying 

prosecution of the case should a stay pending appeal be granted. Given the prospect of 

protracted litigation, engendering enormous time and monetary expenditure, this factor weighs in 

favor of final approval. 

2. The Reaction of the Class to the Settlement 

The second Girsh factor “attempts to gauge whether members of the class support the 

settlement.” Prudential, 148 F.3d at 318. Of the 253,413 claims received as of May 23, 2012, 

only five (5) Settlement Class Members have requested exclusion from the Class. Young 

Affidavit at ¶¶9-10. Further, no Settlement Class Member has yet to file with the Court an 

objection to the Settlement with less than two weeks to go to do so.5

 Plaintiffs recognize 

objections still may be filed and will respond to each no later than seven days prior to the Final 

Approval Hearing, as provided in the Settlement. Settlement at ¶36. However, given that 

253,413 Claim Forms have been received and only five (5) requests for exclusion have been 

received, Young Affidavit at ¶9, it is unlikely that there will be more than a handful of objections 

filed. Under Girsh, such a small number of negative responses favors approval of a class action 

settlement agreement. See Bell Atl. Corp. v. Bolger, 2 F.3d 1304, 1314 n.15 (3d Cir. 1993) 

(silence is “tacit consent” to settlement). “The Third Circuit has looked to the number of 

objectors from the class as an indication of the reaction of the class.” In re CertainTeed Corp. 

 

5

 The deadline either to request exclusion from the Settlement or to file an objection to the 

Settlement is June 8, 2012. Settlement at ¶33. 

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Roofing Shingle Products Liab. Litig., 269 F.R.D. 468, 485 (E.D. Pa 2010) (citing In re Cendant, 

264 F.3d at 234-35). A “paucity of protestors . . . militates in favor of the settlement.” See Bell 

Atl., 2 F.3d at 1314; see also Stoetzner v. U. S. Steel Corp., 897 F.2d 115, 118 (3d Cir. 1990) 

(objections by 29 members of a class comprised of 281 “strongly favors settlement”); Prudential, 

962 F. Supp. at 537 (small number of negative responses to settlement favors approval); Weiss v. 

Mercedes-Benz of North America, Inc., 899 F. Supp. 1297, 1301 (D.N.J. 1995) (100 objections 

out of 30,000 class members weighs in favor of settlement). The lack of any meaningful 

negative response to the Settlement evinces the quality and value of the Settlement. Class 

Counsel will provide a final tally of the objections, and respond fully to their substance. The 

data to date, however, reflects overwhelming support from the Class. 

3. The Stage of Proceedings and the Amount of Discovery Completed 

The third Girsh factor “‘captures the degree of case development that class counsel [had] 

accomplished prior to settlement. Through this lens, courts can determine whether counsel had 

an adequate appreciation of the merits of the case before negotiating.’” Cendant, 264 F.3d at 

235 (quoting GM Trucks, 55 F.3d at 813). The discovery considered by the court includes both 

“formal” and “informal” discovery received from the defendant, third-parties and experts. See, 

e.g., GM Trucks, 55 F.3d at 813 (expert testimony and other evidence from parallel state court 

proceedings); Prudential, 148 F.3d at 319 (witness interviews); Cendant, 264 F.3d at 235 (public 

filings); Warfarin Sodium, 391 F.3d at 537 (consultation with experts). 

Although the case is in an early stage of the litigation, Plaintiffs have conducted 

extensive discovery into Defendant’s advertising of Nutella and retained experts in the field. 

Moreover, Class Counsel have extensive experience in litigating cases of this type, so they are 

also aware of the legal merits and pitfalls in litigating nationwide consumer class actions. Class 

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Counsel is absolutely confident that they have a thorough appreciation of the facts – good and 

bad – that bear upon the merits of the claims in this litigation. See, e.g., Weiss, 899 F. Supp. at 

1301 (recognizing early settlement is not a bar to approval where there is no evidence of 

collusion and the settlement represents substantial concessions by both sides). 

4. Risks of Establishing Liability 

“By evaluating the risks of establishing liability, the district court can examine what the 

potential rewards (or downside) of litigation might have been had class counsel elected to litigate 

the claims rather than settle them.” GM Trucks, 55 F.3d at 814. While Plaintiffs are confident in 

the merits of their case, they also recognize the uncertainties of litigation where Plaintiffs must 

plead sufficient “factual content that allows the court to draw the reasonable inference that the 

defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). 

And, although Plaintiffs are confident that their claims are legally sound, there is always the 

possibility that the Court may disagree. See, e.g., In re Epogen and Aranesp Off-Label Mktg. 

and Sales Pract. Litig., No. MDL 08-1934 PSG (AGRx), 2009 WL 1703285 (C.D. Cal. June 17, 

2009) (dismissing with prejudice MDL litigation involving RICO and consumer fraud claims 

involving promotion of prescription drugs); District 1199P Health and Welfare Plan v. Janssen, 

L.P., No. 06-3044 (FLW), 2008 WL 5413105 (D.N.J. Dec. 23, 2008) (RICO); Ironworkers Local 

Union No. 68 v. AstraZeneca Pharm. LP, 585 F. Supp. 2d 1339 (M.D. Fla. 2008) (RICO and 

consumer fraud). These risks include the risk of denial of class certification or the granting of 

summary judgment. The Settlement provides substantial monetary and injunctive benefits 

without the inherent risk of establishing liability at trial. Thus, these inherently unpredictable 

risks in establishing liability weigh in favor of settlement, particularly here, where the Settlement 

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provides the Class with a substantial benefit that is not only fair, reasonable, and adequate, but an 

excellent result. 

5. Risks of Establishing Damages 

“Like the fourth factor, ‘this inquiry attempts to measure the expected value of litigating 

the action rather than settling it at the current time.’” Cendant, 264 F.3d at 238. The court looks 

at the potential damage award if the case were taken to trial against the benefits of immediate 

settlement. Prudential, 148 F.3d at 319. In Warfarin Sodium, the trial court found that the risk 

of establishing damages strongly favored settlement, observing that “[d]amages would likely be 

established at trial through ‘a “battle of experts,” with each side presenting its figures to the jury 

and with no guarantee whom the jury would believe.’” In re Warfarin Sodium Antitrust Litig., 

212 F.R.D. 231, 256 (D. Del. 2002), aff’d 391 F.3d 516, 537 (3d Cir. 2004). Similarly, in 

Cendant, the Third Circuit reasoned that there was no compelling reason to think that “a jury 

confronted with competing expert opinions” would accept the plaintiff’s damages theory rather 

than that of the defendant, and thus the risk in establishing damages weighed in favor of approval 

of the settlement. 264 F.3d at 239. The same is true here in the Nutella litigation as Settlement 

Class Members could have difficulty at trial establishing that they were damaged and to what 

extent they were damaged. Thus, this factor weighs in favor of final approval. 

6. Risks of Maintaining Class Action Status Through Trial 

Because the prospects for obtaining certification “have a great impact on the range of 

recovery one can expect to reap from the [class] action,” see GM Trucks, 55 F.3d at 817, the 

court must measure the likelihood of obtaining and maintaining a certified class if the action 

were to proceed to trial. See Girsh, 521 F.2d at 157. “Class certification is proper only ‘if the 

trial court is satisfied, after a rigorous analysis, that the prerequisites’ of Rule 23 are met.” In re 

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Hydrogen Peroxide Antitrust Litig., 552 F.3d 305, 309 (3d Cir. 2008). While this case is 

appropriate for class action treatment, regardless of any settlement, it is undeniable that given the 

Third Circuit’s requisite rigorous class certification analysis, class certification for settlement 

purposes removes some of the hurdles upon which some courts have denied certification of a 

litigation class. 

For example, manageability is not a concern with settlement classes. Amchem, 521 U.S. 

at 620; Cmty. Bank, 418 F.3d at 309. Differences in state law that often complicate the 

certification of a nationwide litigation class, see, e.g., In re LifeUSA Holding Inc., 242 F.3d 136, 

147 n.11 (3d Cir. 2001), are “irrelevant to certification of a settlement class.” Warfarin Sodium, 

391 F.3d at 529. There are also issues concerning the causation and injury elements of Plaintiffs’ 

claims. While some courts have held that such issues can be tried on a class-wide basis, see, e.g., 

Hilao v. Estate of Marcos, 103 F.3d 767, 786-87 (9th Cir. 1996), other decisions have taken a 

different view. See, e.g., McLaughlin v. Am. Tobacco Co., 522 F.3d 215, 234 (2d Cir. 2008). 

What is certain is that any decision granting certification would be subjected to the cost, delay, 

and the uncertainty of a Rule 23(f) appellate challenge before the class could proceed to trial; an 

appeal from any verdict or judgment in favor of the class likewise would follow. 

If a class could not be certified here, it would leave few, if any, class members with both 

the resources and financial incentive to pursue claims in their own behalf, with the practical 

result of no recovery by anyone. See Carnegie v. Household Intern., Inc., 376 F.3d 656, 661 (7th 

Cir. 2004) (“The realistic alternative to a class action is not 17 million individual suits, but zero 

individual suits, as only a lunatic or a fanatic sues for $30.”) (emphasis in original). The 

proposed Settlement provides a remedy now to all class members, rather than risking an 

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uncertain result after years of expensive litigation. Thus, this factor weighs in favor of final 

approval. 

7. Ability to Withstand Greater Judgment 

The seventh Girsh factor considers “whether the defendants could withstand a judgment 

for an amount significantly greater than the [s]ettlement.” Cendant, 264 F.3d at 240. It is likely 

that Ferrero could withstand a judgment greater than it is paying as a settlement here. However, 

that does not, by itself, militate against final approval. In Warfarin Sodium, for example, the 

court stated that: 

Although the plaintiffs do not dispute that DuPont’s total resources far exceed the 

settlement amount, the fact that DuPont could afford to pay more does not mean 

that it is obligated to pay any more than what the consumer and TPP class 

members are entitled to under the theories of liability that existed at the time the 

settlement was reached. Here, the District Court concluded that DuPont’s ability to 

pay a higher amount was irrelevant to determining the fairness of the settlement. 

We see no error here. 

391 F.3d at 538; see also GM Trucks, 55 F.3d at 818 (“no error” in the district court’s decision 

not to “attribute any significance” to defendant’s ability to withstand a greater judgment); Am. 

Investors Life, 263 F.R.D. at 242 (finding this factor neutral where the defendant, as a major 

corporation, could withstand greater judgment). 

8. The Range of Reasonableness of the Settlement Fund in Light of the Best 

Possible Recovery and All the Attendant Risks of Litigation

The last two Girsh factors are usually considered together. They ask “whether the 

settlement is reasonable in light of the best possible recovery and the risks the parties would face 

if the case went to trial.” Prudential, 148 F.3d at 322; see also Warfarin Sodium, 391 F.3d at 

538 (court should consider “whether the settlement represents a good value for a weak case or a 

poor value for a strong case”). As Judge Becker explained in GM Trucks, “[t]he evaluating court 

must ... guard against demanding too large a settlement based on its view of the merits of the 

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litigation; after all, settlement is a compromise, a yielding of the highest hopes in exchange for 

certainty and resolution.” 55 F.3d at 806. 

Here, the likelihood that a greater result could be achieved at trial is remote as the 

Settlement achieves complete injunctive relief with the corrective marketing plan and substantial 

monetary relief. Settlement Class Members can receive the entire purchase price for each 

purchase up to five jars, or $20.00, subject to pro rata reduction based on the aggregate number 

of claims. Given the inherent risks in litigating a damages class in this case, this benefit is highly 

significant. In addition to the monetary award to Class members, the Settlement also provides 

for significant injunctive relief to consumers in the form of a change in the labeling and 

corrective advertising for Nutella. Id. at ¶¶39-42. The heart of this action is the contention that 

Ferrero’s marketing campaign, which was the accelerant to the dramatic enhancement of 

Nutella’s sales, was based upon a clever but deceptive premise – namely, that Nutella is, in and 

of itself, a healthy food product that could and should be given to children and others at 

breakfast, among other meals, and as snacks throughout the day. As Plaintiffs allege, this was 

simply not true, as an examination of the actual content of the product attests. ECF No. 1, ¶21. 

Plainly, through this lawsuit, Class Counsel achieved full relief by negotiating a complete halt to 

the offending ad campaign. As a result, going forward, the consumer no longer will be exposed 

to false messaging about the nutritional value of the product. This is no small thing. To the 

contrary, it is a significant and highly valuable achievement that Class Counsel accomplished 

against a determined and well-funded adversary that had literally spent millions of dollars on the 

very advertising campaign the class sought to end. Settlement Class Members, regardless of 

whether they submit a claim, now will receive a more realistic depiction of Nutella’s proper role 

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in balances, nutritional breakfast planning for children. See generally Wright Decl. It is beyond 

question that the Injunctive Relief achieved here is highly salutory and material. 

Overall, the Girsh factors militate strongly in favor of approving the proposed Settlement. 

The settlement allows a substantial real recovery for all Class members now, rather than waiting 

for years for a recovery which might be more than the amount of the Settlement, but where there 

is a substantial risk of recovering nothing. Class Counsel has made a full evaluation of the 

relevant facts and law and believe that, under all of the facts and circumstances, the Settlement is 

not only fair and reasonable, but represents a significant victory for the Class. 

D. The Notice Program Satisfies Rule 23 and Due Process and Has Been Fully 

Implemented 

To protect the rights of absent members of the Class, the Court must ensure that all Class 

Members who would be bound by a class settlement are provided the best practicable notice. 

See Fed. Rule Civ. P. 23(c)(2)(B); Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 811-12 

(1985). The best practicable notice is that which is “reasonably calculated, under all the 

circumstances, to apprise interested parties of the pendency of the action and afford them an 

opportunity to present their objections.” Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 

306, 314 (1950). Where a court preliminarily certifies a class and approves a proposed 

settlement, “proper notice must meet the requirements of [Rules] 23(c)(2)(B) and 23(e).” In re 

Insurance Brokerage Antitrust Litig., MDL No. 1663, 2012 WL 1071240, at *13 (D.N.J. Mar. 

30, 2012) (Cecchi, J.). Notice that is compliant with Rule 23(c)(2)(B) “must inform class 

members of: (1) the nature of the action; (2) the definition of the class certified; (3) the class 

claims, issues, or defenses; (4) the class member’s right to retain an attorney; (5) the class 

member’s right to exclusion; (6) the time and manner for requesting exclusion; and (7) the 

binding effect of a class judgment on class members under Rule 23(c)(3).” Id.; Fed. R. Civ. P. 

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23(c)(2)(B)(i)-(vii). Rule 23(e) notice must contain a summary of the litigation sufficient “to 

apprise interested parties of the pendency of the settlement proposed and to afford them an 

opportunity to present their objections.” In re Prudential Ins. Co. of Am. Sales Practice Litig., 

177 F.R.D. 216, 231 (D.N.J. 1997). As detailed above, the Settlement Class Members have 

received Notice of the Settlement in conformance with due process and Rules 23(c)(2)(B) and 

23(e)(1). 

 The Notice Program that the Court initially and preliminarily approved on February 3, 

2012, was fully implemented. The Claims Administrator sent 619 Notice Packets were 

disseminated to individuals who contacted the Claims Administrator, and the wider publication 

notice was placed in Parents May 2012 issue, People April 16, 2012 issue, Ser Padres May 2012 

issue and Woman’s Day May 2012 issue and was posted on the following third-party websites: 

24/7 Real Media Network - Parenting Channel from April 6 – 20, 2012 (5 million impressions) 

and Facebook from April 6 – 20, 2012 (10 million impressions). Young Affidavit at ¶¶3, 6. In 

addition to direct mail notice, print advertisements, and website postings, notice was posted on 

the dedicated settlement website, www.nutellaclassactionsettlement.com, established by the 

Claims Administrator, that contains the Settlement Agreement, Class Notice, and information 

relating to filing a claim, opting out of the Settlement, objecting to the Settlement, deadlines 

relating to the Settlement, Frequently Asked Questions, and other information relevant to the 

Settlement.6

 Id. at ¶4. Additionally, the Settlement Website contains an electronic Claim Form 

to allow on-line submissions of claims as well as a Claim Form which can be downloaded, 

printed, and mailed to the Claims Administrator. Id. As of May 23, 2012, the website has been 

visited approximately 1,078,410 times. Id. This Notice Program has informed the Class 

 

6

 The Notice, Claim Form and Frequently Asked Questions on the Nutella Consumer Class 

Action website also were translated into Spanish. Young Affidavit at ¶4. 

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Members fully of their rights and benefits under the Settlement. All required information has 

been fully and clearly presented to the Settlement Class Members. Accordingly, this direct mail 

notice, in connection with a widespread publication notice campaign, is the best practicable 

notice under the circumstances, satisfying both due process and Rule 23. See, e.g., Insurance 

Brokerage, 2012 WL 1071240, at *19 (finding notice program comprised of short-form notice, 

long-form notice and publication notice to be compliant with Rule 23); In re Kentucky Grilled 

Chicken Coupon Mktg. & Sales Practices Litig., MDL No. 2103, 2011 WL 5599129, at *5-*6 

(N.D. Ill. Nov. 16, 2011) (finding a notice program that “utilized a combination of print 

newspaper publication, website publication notice, and inventive targeted on-line advertising” 

was “the best method practicable to all others and comports with Due Process and Rule 23”). 

CONCLUSION

For the foregoing reasons, Class Counsel respectfully request that the Court grant the 

relief requested herein. 

CARELLA, BYRNE, CECCHI, 

OLSTEIN, BRODY & AGNELLO, P.C. 

Attorneys for Plaintiff Kaczmarek and the Class 

By: /s/ James E. Cecchi 

 JAMES E. CECCHI 

Dated: May 25, 2012 

Christopher M. Burke 

SCOTT+SCOTT LLP 

707 Broadway, Suite 1000 

San Diego, CA 92101 

(619) 233-4565 

Joseph P. Guglielmo 

SCOTT+SCOTT LLP 

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500 Fifth Avenue, 40th Floor 

New York, NY 10110 

(212) 223-6444 

Counsel for Plaintiff Glover and Class Counsel 

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