Christopher V. Langone

Attorney at Law

207 Texas Lane

Ithaca, New York 14850

(607) 592-2661

Attorney for Objectors

Bochenek, Goodman & Hagele

180 North LaSalle, #3700

Chicago, IL 60602

(By Appt. Only)

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

IN RE; : 11 CV 1086

: (FLW/DEA)

NUTELLA MARKETING AND :

: Motion Date:

SALES PRACTICES LITIGATION : January 22, 2013

REPLY IN SUPPORT OF MOTION FOR ORDER TO 

SHOW CAUSE AS TO WHY THE SETTLEMENT 

AGREEMENT SHOULD NOT BE IMMEDIATELY 

IMPLEMENTED 

 

Plaintiffs Glover and Kaczmarek and Defendants have 

joined together to oppose the relief sought by the Bochenek 

objectors to immediately implement the settlement. They have 

not shown, however, why paragraph 55 of the Settlement 

Agreement – which explicitly severs fee issues from the remainder 

of the Settlement – should not be enforced. Paragraph 55 states, 

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in relevant part, 

“Notwithstanding any other provision in this Agreement to 

the contrary, the procedure for allowance (in whole or in 

part) ...for attorney’s fees, costs, and expenses ... and any 

order or proceeding relating to the award of fees, or any 

appeal of any order relating thereto, shall not operate to 

terminate or cancel this Agreement and Settlement of the 

Action.” 

Settlement Agreement, Paragraph 55.

So movants are not asking this Court to re-write the 

agreement – they are asking this Court to enforce it. 

In response, Class Counsel state:

While the Langone Objectors have offered to limit their 

appeal to the issue of whether Class Counsel’s fees should be 

paid solely by Ferrero out of the Settlement Fund, that offer 

has been in the context of a quid pro quo in return to some 

concession from Class Counsel, which Class Counsel are not 

willing to provide.

(Glover Response, p. 6). This is simply false. There was no request 

for a concession in exchange for the “offer” to limit the appeal. 

The appeal has always been so limited: Bochenek objectors stated 

this in the Concise statement they filed in the Third Circuit, in 

response to the brief to dismiss the appeal, and before this Court 

in the present motion. Counsel does not specify in any detail the 

alleged “context” in which a “concession” was demanded. There is 

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none, and no evidence before this Court of such. 

The Bochenek objectors are not appealing any portion of this 

Court’s orders, except the fees, which under Paragraph 55 are 

totally separate from the other issues. Nutella should proceed 

with it’s new labels and advertising campaign, and distribute the 

funds currently in escrow. 

The appeals of the “other objectors” do not change the result. 

Neither of the other objectors have filed anything opposing 

immediate distribution. The Sibley objectors joined in the 

Bochenek brief in the Third Circuit, which explicitly states that 

immediate distribution is being sought, so they are on board with 

the request according to the pleadings. The Hampe objectors have 

not opposed the motion to dismiss their appeal. And neither the 

Sibley nor Hampe objectors validly objected to anything other 

than fees anyway. All of this means Paragraph 55 should be 

enforced according to its terms.

Defendants state that the Bochenek objectors “presume they 

can control the shape and scope of issues considered by the Third 

Circuit of Appeals.” (Ferrero Opposition Brief, at p. 2). There is 

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nothing improper or presumptuous about such a presumption: an 

appellant is obviously the mater of their appeal – the appeals 

court cannot and will not consider issues beyond those appealed. 

There were no cross-appeals filed. 

Defendants also state “Ferrero is not willing to risk 

distributing millions of dollars to class members simply to allow 

these three individuals to escape the consequences of their own 

actions, i.e., complying with the supersedeas bond ordered by this 

Court. (Ferrero Opposition Brief, p. 3). First, Ferroro would not be 

distributing “millions” of dollars. Under the current settlement 

there is 1.875 million dollars to distribute (less than 2 million). 

And Defendant has already paid over $1 million dollars to class 

counsel. Because the settlement fund was already reduced by 

$625,000 in attorneys’ fees and hundreds of thousands in 

administrative expenses, there is not multiple “millions” to 

distribute. 

Second, this Court did not order a supersedeas bond. This is 

the procedure objectors believe would have been proper – to order 

enforcement of the settlement and make objectors pose a 

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supersedeas bond to “supersede” – and thus stay – the judgment. 

Instead, this Court imposed a Rule 7 cost bond, which is different 

than a supersedeas bond. Contrary to the representations made 

by counsel, cost bonds cannot be satisfied by merely posting 10% --

a cost bond must be posted in full. Counsel for the Bochenek 

objectors has confirmed this with several bonding companies. 

Thirdly, Defendants have contractually agreed not to oppose 

fee requests up to $3,000,000 on the injunctive side. This means 

that Ferrero is prohibited from opposing the Bochenek appeal, 

which requests the $2,500,000 this Court returned to defendant be 

instead awarded to the class. And class counsel would be in 

breach of its fiduciary duties if it opposes the appeal, which seeks 

$2.5 million more for the class.

The alleged costs of a second distribution do not justify 

denying the present motion. Indeed, if the Bochenek objectors 

prevail on appeal they will obtain more for the class than the 

$1.875 that currently exists in the settlement fund. On appeal, 

the Bochenek objectors seek $2.5 million more from Nutella and 

$625,000 from class counsel. If they prevail on appeal the class 

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will benefit to the tune of up to $3.1 million – almost twice what is 

currently in the fund.

If it is sensible to pay the class administrator $165,944 to 

distribute the $1.8 million (i.e., the current settlement, as 

approved), then it is a fortiori sensible to spend $165,944 to 

distribute an additional $3.1 million. The fact that there would be 

costs to a second distribution is the result of the conduct by 

Glover, Kaczmarek and Class Counsels efforts in opposing the 

Bochenek objectors efforts to obtain more money from Ferrero. 

This is an inexplicable breach o f their fiduciary duties to the 

class; if they perist (and succeed) in preventing the Bochenek 

objectors from obtaining this relief they will have breached their 

fiduciary duty to class and caused classwide damages in excess of 

$2.5 million dollars. The Bochenek objectors still hope this is not 

the case and the Class representatives will join their appeal 

(which defendants are contractually prohibited from opposing).

All of the references to Paragraphs 43, 47, and 48 are not 

relevant as Paragraph 55 states it applies “notwithstanding any 

other provision...to the contrary.” Appeals regarding fees do not 

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stay the effect of the balance of the Settlement Agreement, which 

was approved and should be implemented.

Respectfully,

s/ Christopher V. Langone

Counsel for Bockenek, 

Goodman, and Hagele

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