Declaration of C.Sarchio ISO Response in Support of Motion for ...

Case 3:11-cv-02039-JAH-NLS Document 106-1 Filed 08/13/12 Page 1 of 6
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WILSON TURNER KOSMO LLP
VICKIE E. TURNER (106431)
550 West C Street, Suite 1050
San Diego, CA 92101
Telephone: (619) 236-9600
Facsimile: (619) 236-9669
E-mail: vturner@wilsonturnerkosmo.com
PATTON BOGGS LLP
CHRISTINA GUEROLA SARCHIO (Pro Hac Vice)
HAVEN G. WARD (Pro Hac Vice)
2550 M Street, N.W.
Washington, D.C. 20037
Telephone: (202) 457-6000
Facsimile: (202) 457-6315
E-mail: csarchio@pattonboggs.com
E-mail: hward@pattonboggs.com
Attorneys for Defendants
BOIRON, INC. and BOIRON USA, INC.
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
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SALVATORE GALLUCCI, AMY ARONICA,
KIM JONES, DORIS PETTY, and JEANNE
PRINZIVALLI, on behalf of themselves, all
others similarly situated, and the general public,
v.
Plaintiff,
BOIRON, INC. and BOIRON USA, INC.,
Defendants.
AND ALL RELATED ACTIONS
Case No. 3:11-cv-2039-JAH-NLS
DECLARATION OF CHRISTINA G.
SARCHIO IN SUPPORT OF
DEFENDANTS’ MEMORANDUM IN
SUPPORT OF PLAINTIFF’S MOTION
FOR FINAL APPROVAL
Date: August 27, 2012
Time: 2:30 p.m.
Judge: Hon. John A. Houston
Courtroom: 11
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Case No. 3:11-cv-2039-JAH-NLS
DECLARATION OF CHRISTINA G. SARCHIO IN SUPPORT OF DEFENDANTS’
MEMORANDUM IN SUPPORT OF PLAINTIFF’S MOTION FOR FINAL APPROVAL
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I, Christina G. Sarchio, under 28 U.S.C. § 1746, hereby declare as follows:
1. I am an attorney duly licensed to practice law in the District of Columbia, New York,
and New Jersey, and am admitted pro hac vice before this Court. I am counsel for Defendants
Boiron, Inc. and Boiron USA, Inc. (collectively “Boiron”) in the above-captioned action. I have
personal knowledge of the facts stated herein. I affirm that the facts stated herein are true and correct
and, if called as a witness, I could and would testify competently thereto.
2. A true and correct copy of the Food and Drug Administration Compliance Policy
Guide, “Conditions Under Which Homeopathic Drugs May Be Marketed” § 400.400 is attached
hereto as Exhibit A.
3. The Homeopathic Pharmacopoeia of the United States’ (“HPUS”) has been published
since 1897 and is continuously updated by the Homeopathic Pharmacopeia Convention of the United
States, a non-profit scientific organization composed of experts in the fields of medicine, biology,
botany, chemistry, and pharmacy. A true and correct copy of screenshots from the HPUS Website
entitled “What is the HPUS?” which provides additional background information is attached hereto
as Exhibit B, and is available at http://www.hpus.com/whatishpus.php (last accessed August 13,
2012).
4. A true and correct copy of screenshot from the HPUS Website entitled “What is
Homeopathy?” is attached hereto as Exhibit C, and is also available at
http://www.hpus.com/whatishomeopathy.php (last accessed August 13, 2012).
5. A true and correct copy of screenshots from the HPUS Website entitled “Overview,”
and related sub-sections thereof, is attached hereto as Exhibit D, and is also available beginning at
http://www.hpus.com/overview.php (last accessed August 13, 2012).
6. The following are examples of FDA Warning Letters regarding homeopathic
products:
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FDA Warning Letter to Pure Med Spa, dated April 6, 2010, available at
http://www.fda.gov/ICECI/EnforcementActions/WarningLetters/2010/ucm207642.ht
m (last accessed August 12, 2012);
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Case No. 3:11-cv-2039-JAH-NLS
DECLARATION OF CHRISTINA G. SARCHIO IN SUPPORT OF DEFENDANTS’
MEMORANDUM IN SUPPORT OF PLAINTIFF’S MOTION FOR FINAL APPROVAL
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FDA Warning Letter to Nutrition Dynamics, Inc., dated March 12, 2001, available at
http://www.fda.gov/downloads/ICECI/EnforcementActions/WarningLetters/2001/UC
M069419.pdf (last accessed August 12, 2012).
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7. A true and correct copy of the relevant excerpts of the deposition transcript of Dr.
Lynn Roger Willis, dated February 27, 2012, from Fernandez, et al. v. Boiron, Inc., No. 11-CV-
01867 (C.D. Cal. filed Dec. 2, 2011), is attached hereto as Exhibit E.
8. A true and correct copy of Scott Ferrell’s email to Boiron’s counsel, dated June 6,
2011, stating, inter alia, that if the court in Delarosa v. Boiron, Inc., No. 10-cv-1569-JST-CW (C.D.
Cal. removed Oct. 14, 2010), denied Boiron’s pending motion for judgment on the pleadings, “it will
likely generate a veritable flood of similar claims against your client relating to other homeopathic
products, both in California and in other states,” is attached hereto as Exhibit F.
9. A true and correct copy of Scott Ferrell’s email to Boiron’s counsel, dated August 16,
2011, regarding the Newport Trial Group (“NTG”) being amenable to a settlement which covered all
of Boiron’s homeopathic remedies, and provided for a nationwide release, is attached hereto as
Exhibit G.
10. A true and correct copy of Scott Ferrell’s email to Boiron’s counsel, dated August 18,
2011, regarding NTG’s awareness of several settlements which cover a range of products is attached
hereto as Exhibit H.
11. A true and correct copy of Scott Ferrell’s email to Boiron’s counsel, dated August 25,
2011, regarding NTG’s request for an $8 million attorneys’ fee award is attached hereto as Exhibit I.
12. A true and correct copy of Christina Sarchio’s email to Scott Ferrell, dated August 25,
2011, responding to NTG’s request for $8 million in attorneys’ fees, as well as Scott Ferrell’s
response thereto, dated August 26, 2011, that the $8 million amount is based upon a potential
nationwide settlement of all of Boiron’s homeopathic products is attached hereto as Exhibit J.
13. A true and correct copy of Scott Ferrell’s email to Boiron’s counsel, dated September
16, 2011, indicating that although Ronald Marron had informed Mr. Ferrell that Boiron and Mr.
Marron were in discussions about mediation, Mr. Ferrell did not want to engage in mediation until
Case No. 3:11-cv-2039-JAH-NLS
DECLARATION OF CHRISTINA G. SARCHIO IN SUPPORT OF DEFENDANTS’
MEMORANDUM IN SUPPORT OF PLAINTIFF’S MOTION FOR FINAL APPROVAL
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the lead counsel issue in Gallucci and Gonzales v. Boiron, Inc. et al., No. 3:11-CV-2066 JAH NLS
(S.D. Cal. removed Sept. 7, 2011), was resolved is attached hereto as Exhibit K.
14. A true and correct copy of Scott Ferrell’s email to Boiron’s counsel, dated September
16, 2011, indicating that Mr. Marron had advised Mr. Ferrell on September 15, 2011 and again on
September 16, 2011, that Boiron and Ronald Marron had been in detailed, class-wide mediation
discussions and considered proposed mediators at Judicate West is attached hereto as Exhibit L.
15. A formal mediation session was held regarding the Delarosa matter on November 4,
2011 and terminated, after less than three hours, when it became clear to Boiron that it was not being
conducted in good faith. Other than this mediation session, Boiron did not engage in formal
mediation with NTG in Delarosa or any of the other cases NTG subsequently filed (set forth below)
before the Gallucci parties reached the Settlement Agreement. A true and correct copy of the bill and
notice, dated October 20, 2011, scheduling this mediation session is attached hereto as Exhibit M.
16. After the parties in Gallucci made public their initial memorandum of understanding
on November 18, 2011, NTG and its affiliated counsel filed a series of lawsuits against Boiron.
17. On December 2, 2011, NTG filed Fernandez. Fernandez Dkt. 1. The named plaintiffs
in Fernandez include, inter alia: (i) Gemis Rangel, a convicted felon who served two terms in jail
and testified that he had been arrested so many times that he literally could not remember each
incident, although he did recall being arrested for making terrorist threats; (ii) Monica Fernandez,
who alleges that she took Chestal, but admits she was diagnosed with a “virus,” which Chestal is not
intended to treat; and (iii) Michael Martinez, who claims that he took Arnicare Arthritis to treat his
“sharp pain,” but sharp pain is not a symptom of arthritis, see Fernandez Dkt. 55-18 (Decl. of Dr.
Charles DuMont) 73 (stating that a “[s]harp pain is not characteristic of arthritis”)). A true and
correct copy of the relevant excerpts from following depositions in Fernandez is attached hereto as
Exhibit N:
Deposition Transcript of Gemis Rangel, dated March 2, 2012, at 26:18-30:15, 91:4-
92:8, 107:5-110:10;
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Deposition Transcript of Monica Fernandez, dated March 30, 2012, at 41:9-21; and
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Case No. 3:11-cv-2039-JAH-NLS
DECLARATION OF CHRISTINA G. SARCHIO IN SUPPORT OF DEFENDANTS’
MEMORANDUM IN SUPPORT OF PLAINTIFF’S MOTION FOR FINAL APPROVAL
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Deposition Transcript of Michael Martinez, dated March 28, 2012, at 26:17-27:1,
60:7-16.
18. On December 7, 2011, Patricia N. Syverson and Todd D. Carpenter of the law firm
Bonnett, Fairbourn, Friedman & Balint, P.C. (“NTG’s Affiliated Counsel”), were among the counsel
who filed Bohn v. Boiron, Inc., No. 1:11-cv-80704 (N.D. Ill. filed Dec. 7, 2011). Bohn Dkt. 1. On
December 29, 2011, these same counsel were among the counsel who filed Jovel v. Boiron, Inc., No.
CV11-10803 (SVW) (SHx) (C.D. Cal. filed Dec. 29, 2011). Jovel Dkt. 1.
19. Syverson’s affiliation with NTG includes, at a minimum: (1) Allen v. Hylands, Inc. et
al., No. 2:12-cv-01150-DMG-MAN (C.D. Cal. filed Feb. 9, 2012), in which both represented the
movant; (2) Stephanie Johns et al. v. Neutrogena Corp., No. 2:2012-cv-01452-R-JC (C.D. Cal. filed
Feb. 21, 2012), in which both represented the plaintiff; and (3) In re Checking Account Overdraft
Litig., No. 1:09-md-02036-JLK (M.D. Fla. filed June 10, 2009), in which each represented a
different plaintiff.
20. Todd D. Carpenter’s affiliation with NTG includes, at a minimum: (1) Neutrogena, in
which both represented the plaintiff; and (2) Checking Account Overdraft Litig., in which each
represented a different plaintiff.
21. In addition, NTG’s Scott Ferrell has informed me that he is affiliated with Syverson
and Carpenter in so far as their representation of class members against Boiron.
22. On February 14, 2012, NTG filed Farley v. Boiron, Inc., No RIC 1202159 (Riverside
Sup. Ct. Cal. filed Feb. 14, 2012). Farley Dkt. 1.
23. A true and correct copy of the relevant excerpts of the deposition transcript of Henry
Gonzales, dated April 27, 2012, from Gonzales is attached hereto as Exhibit O.
24. A true and correct copy of the FDA Labeling Cost Model Final Report (Revised Jan.
2003) is attached hereto as Exhibit P.
25. Although Boiron did make an offer of judgment several months ago in Delarosa,
Boiron withdrew that offer, motions for summary judgment are currently pending, and the court has
scheduled the case for trial at the end of October 2012.
Case No. 3:11-cv-2039-JAH-NLS
DECLARATION OF CHRISTINA G. SARCHIO IN SUPPORT OF DEFENDANTS’
MEMORANDUM IN SUPPORT OF PLAINTIFF’S MOTION FOR FINAL APPROVAL
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26. Boiron never filed a response or reply to the competing motions for the appointment
of lead counsel in Gonzales or the present Gallucci case.
27. The Settlement Agreement, Dkt. 64-2 at Ex. A, was reached after 13 mediation
sessions with Magistrate Judge Leo Papas, with five of those sessions occurring after the parties
executed the initial memorandum of understanding in November 2011. During this time, the parties
engaged in extensive discovery, with Boiron producing over 400,000 pages of documents.
28. The NTG Objectors’ suggestion, Dkt. 96 at 4 & 8, that Boiron tried to engage NTG to
participate in a reverse auction during a call on September 5, 2011 is untrue.
I declare under penalty of perjury under the laws of the United States of America and the
State of California that the foregoing is true and correct. This declaration was executed on August
13, 2012, in Washington, District of Columbia.
_
Christina G. Sarchio
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Case No. 3:11-cv-2039-JAH-NLS
DECLARATION OF CHRISTINA G. SARCHIO IN SUPPORT OF DEFENDANTS’
MEMORANDUM IN SUPPORT OF PLAINTIFF’S MOTION FOR FINAL APPROVAL
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