A Nutty Settlement

In a February 2011 post, "This Is Getting Nutty," I wrote about a class action lawsuit that had been filed against Ferrero USA Inc., the United States subsidiary of the company that produces Ferrero Chocolates and Tic-Tac breath mints, over the ingredients in its hazelnut spread, Nutella. The complaint alleged that Ferrero USA violated California consumer protection laws by representing that Nutella is a healthy, nutritious, and balanced breakfast for children. The lawsuit alleged that the name plaintiff, Athena Hohenberg, the mother of a four-year-old child, bought Nutella after she saw advertisements showing mothers serving their children the product and declaring that the spread was a healthy and nutritious breakfast. According to the complaint: "Nutella, however, contains 70% saturated fat and processed sugar by weight. Both of these ingredients significantly contribute to America's alarming increases in childhood obesity, which can lead to life-long health problems." The complaint alleges that Ms. Hohenberg was "shocked" when she learned that Nutella was not healthy and "was the next best thing to a candy bar."

At the time I commented that although numerous bloggers had ridiculed the lawsuit, I noted that because California has some of the strictest consumer protection laws, the case could prove troublesome for Ferrero,  and it would be interesting to see whether Ferrero would vigorously defend the advertising and ingredients in Nutella in a manner similar to the way Taco Bell defended the ingredients in its beef tacos.

Ferrero has decided to settle the case. According to the settlement documents, Ferrero will pay up to $4 for every jar of Nutella bought in California since August 2009, or bought anywhere else in the United States since January 2008. The settlement amount may reach $6,000,000; a total of $3,050,000 for the consumer "buyback," and fees "not to exceed Three Million Dollars ($3,000,000)" for the lawyers. In addition, plaintiffs' counsel can petition the court for a further fee award of up to 30% of the $3,050,000 in the consumer "buyback" fund.

Finally, Ferrero has also agreed to modify the Nutella label to give more prominence to nutritional information, to replace and no longer air three Nutella commercials, and to modify the content of the website for Nutella.

Documents related to the lawsuit and the settlement can be viewed at nutellaclassactionsettlement.com.

Under the Hood

I have written previously that litigation does not occur in a vacuum, and I like to highlight for the readers of this blog the behind the scenes public relations battles that often take place as each side in a contentious matter seeks an advantage in the court of public opinion. In that regard, it should not be surprising that many of the players in the Trayvon Martin matter have employed public relations specialists or strategies to advance their side of this tragic incident.

First up is Ryan Julison, president of Julison Communications, a small communications firm in Windermere, Florida. Mr. Julison has been handling communications and advising Trayvon Martin’s family pro bono. PRWeek US has recently published a profile of Mr. Julison and discussed his work in the Trayvon Martin matter. “Martin family spokesman tells how a local story became a national outrage.”

On the other hand, the public relations efforts on behalf of George Zimmerman, who is now charged with second degree murder for shooting Trayvon Martin, have been evolving. According to an article by Frances Robles of McClatchy Newspapers:

“One self-described friend of George Zimmerman’s who made the rounds on national television was outed as a co-worker who didn’t seem to know him all that well. Another was portrayed as a thinly veiled racist with a checkered criminal history. And on his first TV interview, Zimmerman’s stammering attorney, Craig Sonner, didn’t understand the law the case is based on. But now, after weeks of withering media coverage lambasting him and his supporters, the cast of Zimmerman allies that has until recently been lampooned on TV has been replaced with an aggressive media campaign and message: George Zimmerman is not a racist, and he shot Trayvon Martin to save his own life. Zimmerman appears poised to ratchet up the damage control by having more of his relatives go public, launching a website and hiring a veteran criminal defense attorney with a solid reputation and experience on TV.”

After this opening, Ms. Robles details how the much criticized early public relations efforts on Mr. Zimerman’s behalf became more co-ordinated and more effective under attorney Hal Uhrig, who represented Mr. Zimmerman until the day before he was charged with second degree murder. Ms. Robles concludes with a quote from Natalie Jackson, the attorney representing Trayvon Martin’s parents, who dismissively claims: “It’s a PR strategy, a propaganda campaign.” It is an interesting position to take, considering that, according to Mr. Julison, it was Ms. Jackson who recruited Mr. Julison to handle public relations for Trayvon Martin’s parents.

Finally, there is the city of Sanford, Florida, where Trayvon Martin was shot. Last month the city retained Massey Communications to help repair its image and “work to restore trust in the community's police department.” “Florida city works to rebuild trust after Martin tragedy.” According to PRWeek US, Massey Communications is providing crisis consultations for the Trayvon Martin case, including public and media relations strategy, copywriting of press releases, talking points, prepared statements, and spokesperson preparation.

Knockout

When filing a lawsuit, it is not unusual for lawyers to engage the media as part of a strategy to publicize the alleged sensational nature of the defendant's conduct and thus "soften up" the other side. In "A Litigation Communications Strategy Gone Awry?" I commented that before embarking on such a media campaign, lawyers should make sure that their clients can withstand the scrutiny and not have skeletons in their closets that undercut the message. However, helping a client explain a previously undisclosed embarrassing incident pales in comparison to being sanctioned when the court finds that the media campaign has been waged on behalf of a frivolous lawsuit.

That was the situation Manhattan Supreme Court Justice Paul Wooten confronted last week when he dismissed a lawsuit that Angelica Cecora had filed against former Olympic boxing gold medalist and welterweight champion Oscar De La Hoya, alleging assault, battery, false imprisonment and intentional infliction of emotional distress. Cecora's suit, which sought $5 million in damages, stemmed from an alleged sexual encounter between her, her roommate, and De La Hoya in the Ritz Carlton Hotel in Manhattan. After Judge Wooten granted De La Hoya's motion to dismiss the complaint, he addressed De La Hoya's motion for sanctions against Cecora and her attorney on the grounds that the claims of false imprisonment and intentional infliction of emotional distress were brought primarily to harass or injure him. Judge Wooten granted the motion, ruling that the two causes of action were "completely without merit in law and were undertaken primarily to harass or maliciously injure the defendant." Judge Wooten specifically cited Cecora's media campaign in support of his ruling:

"The Court notes that plaintiff and her attorney's intentional appeal to the media, including a press conference on the steps of the Supreme Court building on the date of the court appearance, and plaintiff's attorney's attempt to embarrass the defendant in front of the media in the courtroom by making an issue of defendant's absence from the Court on the date of oral argument, knowing that it is common practice in civil cases for only attorneys to appear, is further evidence that plaintiff's motivation for maintaining two frivolous causes of action was to harass and maliciously injure the defendant. . . . The conduct of plaintiff is sanctionable for asserting and maintaining two frivolous causes of action, and the conduct of her attorney has crossed the line from zealous advocacy to that which is sanctionable."

Judge Wooten imposed a $500.00 sanction on both Cecora and her attorney, and also ruled that Cecora was required to reimburse De La Hoya for his reasonable attorneys fees and costs.

Cecora v. De La Hoya, 112787/11