Jennifer Reba Thomaidis Paul Gordon
The Animal Law Center, LLC Limited Liability Company
Attorneys at Law Attorney
at Law
Joint Venture
For the Limited Purpose of Representing Victims of Pet Food Toxins
in the State
of Colorado
4465 Kipling Street, Suite 108
Wheat Ridge, CO 80033
1-877-PET LAW 1
(fax) 303-322-4355
Cherry Creek Plaza II
650 South Cherry Street, Suite 835
Denver, Colorado 80246
303-756-0800
x105
Dear Client:
Enclosed,
please find an update on the status of the pet food litigation. In the
interest of providing the most accurate information possible, we sought
out clarification of some settlement issues, which required additional
time.
Background
As you know,
all of the cases filed in the federal courts were consolidated before
a Federal Court in New Jersey (In Re: Pet Food Products Liability Litigation,
MDL Docket No. 1850, Civil Action No. 07-2867 (NLH)), the case has been
pending for approximately a year.
On an ongoing
basis throughout the winter and into the spring, the opposing sides
held settlement talks. During that time the attorneys were restricted
by confidentiality limits set by the Court that prevented us from telling
you much, other than to let you know that settlement talks were ongoing.
A few weeks ago, the Federal Court in New Jersey granted what is called “preliminary approval” to a proposed settlement of all claims arising from the contaminated pet food products. It is very important to note that this is not a final approval.
On June 16, an official notice of the proposed class action settlement was posted to be available to class members and is available to read, download or print on the Internet at www.petfoodsettlement.com.
You can
expect to see notifications about the settlement in some media publications.
The “official”
site excludes some information that we think you deserve to know.
Below is our explanation of the proposed settlement and how you may
fit in.
WHAT FOLLOWS
is an attorney-client privileged communication AND IT is entirely confidential.
Please be sure to keep this document private. THE DOCUMENT SHOULD NOT BE DISTRIBUTED TO ANYONE WHO IS NOT A CLIENT UNDER ANY CIRCUMSTANCES.
WHAT DOES THE PROPOSED SETTLEMENT PROVIDE?
Under the
settlement, the defendants make available $24 million to settle all
claims. This is in addition to the amounts the defendants have already
paid out in individual cases. The proposed settlement lets claimants
who were harmed by their pets having consumed contaminated food make
a claim to receive money for all of their documented expenses,
and make additional claims of up to $900 for undocumented expenses.
For the undocumented expenses, a claimant will still be required to
provide supporting information.
Documented expenses will include veterinarian bills and other costs. If your pet died, documented expenses would also include the cost of cremation or burial, necropsy/autopsy charges and the cost of your pet.
Reimbursement will include costs that arise from:
Making a
claim is not the same as receiving a payout. The actual amount
of any payout will depend on the decision of a neutral Claims Administrator.
The Claims Administrator is an independent party appointed by the court
to process claims. We cannot influence the Claims Administrator
on behalf of your claim and the pet food companies cannot influence
the Administrator against you. The Court has gone to considerable
lengths to ensure this individual is entirely independent.
It has been
impossible to develop satisfactory information about the total costs
caused by the contaminated pet food. The lead negotiators for
pet owners have indicated that they believe the amounts should be enough
to cover claims. However, there is no way of knowing for sure.
If qualifying Claims for payouts, added together, exceed the amount available through the settlement, then everyone’s qualifying payment will be reduced proportionately. If, on the other hand, there is “money left over,” then it will be donated to animal welfare organizations.
Caps - Limits. As part of the proposed settlement, Defendants will only pay a total of $250,000 for claims for the cost of pet food that has not already been returned; and a total of $400,000 for testing for healthy pets that never became ill.
Attorney’s
fees. Under the proposed settlement, the attorneys in the United
States for all of the plaintiffs in the pet food lawsuits will ask the
Court to award them up to 25% of the $24 million dollar amount available
to settle all claims. The distribution of attorney’s fees will be
decided by the court. In case you are wondering, we are not becoming
millionaires out of this case. Far from it. There were an
enormous number of lawsuits filed, and a lot of lawyers. Whether attorneys
like us will be paid at close to our usual rates is an open question.
We had you sign contingency fee agreements, in which you agreed to pay
a percentage of your recovery. Since this case is a class action, attorneys’
fees will be decided by the court and will not come out of the money
you receive individually from the claims administration process.
WHO IS PART OF THE PROPOSED SETTLEMENT?
The proposed settlement aims to be complete and comprehensive. It includes every Defendant in every one of the pet food lawsuits, and proposes to settle claims for all persons who bought or consumed any of the recalled pet food. The defendants include Menu Foods and other pet food manufacturers, distributors of the contaminated wheat gluten in the pet food, retail chains such as Wal-Mart, Petco, and Petsmart, and other companies.
IS THE SETTLEMENT FINAL?
The proposed settlement is not “final” – yet. It will become final if the Court approves it. The Court is currently scheduled to decide if the settlement should be finally approved on October 14, 2008. In the meantime, the ball is now in your court. Long before October 14, 2008, you, as a claimant, should decide if you want to participate in the settlement.
WHAT ARE MY OPTIONS?
You have
three active options. Please note, if you choose to do nothing,
you will get nothing from the settlement and you will have no further
opportunity to affect the settlement or benefit from it; however, you
will still be bound by the limits written into the settlement and you
will not be able to recover any compensation, period. Doing nothing
is the least desirable option. Time is short. You need to
decide on a course of action and then proceed with it.
Option
1. You may decide to participate in the settlement. To do that
you must complete and return a claim form by November 24, 2008.
You can return a claim form by mail (postmarked by
November 24, 2008), by fax (sent and received by
November 24, 2008), or by email (sent and received by November 24, 2008), to claims@petfoodsettlement.com as
an attached .PDF file.
Claim forms
are available now. You can get them at www.petfoodsettlement.com or by calling 1-800-392-7785.
This is the web address and the toll-free telephone number for the Claims
Administrator.
The Claims
Administrator has been put in place to make decisions on all payouts.
The court has set this individual up to be entirely independent and
neutral. Again, we cannot attempt to influence them on behalf of your
individual claim.
Option 2. You may decide to exclude yourself from the settlement - - This is called “opting out.” You may want to do this, for example, if you decide that the settlement is not right for you and you want to have another lawyer file a lawsuit on your behalf. If more than 2,000 persons exclude themselves or “opt-out” from the settlement, then the Defendants have a right to cancel the settlement altogether if they want to. If you decide to opt out, you have to send the Administrator a statement to that effect, postmarked by August 15, 2008. You cannot exclude yourself on the phone, or by email or other electronic communication. It is our advice to send by mail a written statement to the claims administrator specifically stating that you are choosing to opt-out of this settlement.
Option
3. You may decide to object to or otherwise comment on the settlement.
You can do this in person or in writing. If you pick this option,
you cannot exclude yourself as in Option 2. If you pick this option,
you are not “opting out.” You are instead participating in
the settlement, but asking the Court take into consideration your comments
when deciding whether to approve the settlement, because you think it
should be better, because you believe the settlement is not fair, reasonable
or just, or because of some other reason.
If you decide on Option 3, you have to write to the court by September 12, 2008 (postmark date) and also send a copy to one of the negotiating attorneys, who are named on the claims form. If you comment or object, you could still decide to participate, provided you file the correct forms by November 24, 2008 (postmark date).
WHAT IS THE DEADLINE BY WHICH I HAVE TO ACT?
Option 1 (Participate). November 24, 2008 (postmark date/email in .PDF format date).
Option 2 (Opt Out). August 15, 2008 (postmark date).
Option 3 (Comment or Object while Participating). September 12, 2008 (postmark date). If you comment or object, we are aware of no impediment to still filing an application by November 24, 2008 and receiving benefits under the settlement.
We urge you to make up your mind well in advance of any of these deadlines.
HOW DO I PARTICIPATE IN THE SETTLEMENT (OPTION 1)?
To participate in the settlement
you would have make a claim and mail it, fax it, or email it in .PDF
format, before the deadline of November 24, 2008 (postmark date).
HOW DO I MAKE A CLAIM?
Class members with Internet
access can download Claim Forms from http://www.petfoodsettlement.
If you don’t
have Internet access you can get forms and other information mailed
to you by calling 1-800-392-7785.
Our firms will not be sending out forms.
You must
complete the claim form and attach any bills, receipts, veterinarian
letters, or others proofs, if you have any, in support of your expenses. If
we have the only copies of these documents, we will be happy to get
them to you to include them into your claim.
Also, you can receive a payout for both documented and for undocumented expenses. Even without documentation in this form, you can still make a claim to receive up to $900 for any expenses or losses for which you can provide other evidence.
WHEN IS THE DEADLINE FOR MAKING A CLAIM?
The deadline for submitting your claim form is November 24, 2008 (postmark date, fax date, email .PDF date). However, if you want to make a claim, we strongly urge you to complete a claim form now. DO NOT WAIT UNTIL THE “LAST MINUTE.” The claims can take a long time to process.
WHO DECIDES IF MY CLAIM, OR HOW MUCH OF MY CLAIM, WILL BE PAID?
Under the terms of the settlement, an independent Claims Administrator will review the claims and decide whether the claim should be paid and in what amount. Again, we cannot attempt to influence the Claims Administrator, and neither can the pet food companies. The Claims Administrator is meant to be entirely independent and neutral.
HOW DO I EXCLUDE MYSELF FROM THE PROPOSED SETTLEMENT (OPTION 2)?
It may be reasonable for you to consider excluding yourself from the settlement if you have available, and want to pursue, an individual lawsuit. If you are interested in excluding yourself from the settlement, and if you would like to consult with us about this, you must mail your exclusion to the Claims Administrator by August 15, 2008 (postmark date). The Notice of the proposed settlement explains how to do this.
If you are considering pursuing
an individual lawsuit, please note that the legal strength of your claims
may vary depending on the state where you live. An article
that addresses many of the legal issues that come into play with animals
is located at:
http://www.
Applicable law varies from
state to state. Also, please note that you only have a limited time
to bring a claim, so it is important to consult with an attorney in
your state right away if you want to explore bringing an individual
claim or lawsuit.
Although
justice might be best served by pursuing a lawsuit through to the end
and getting a jury decision against the Defendants, please remember
that any lawsuit can be costly and stressful, particularly when going
up against billion dollar companies and armies of their lawyers.
If you decide to bring an individual case, discuss risks and cost issues
with your lawyer before you proceed.
Your agreement
with the lawyers only involves services related to this combined class
action; it is important to note that we are not representing you or
any other individual clients in individual cases.
HOW DO I OBJECT TO THE PROPOSED SETTLEMENT (OPTION 3)?
If you are interested in remaining part of the class and the settlement, but you want to object to its terms, you must mail your objection to the Claims Administrator by September 12, 2008 (postmark date). The Notice of the proposed settlement explains how to do this.
IS THIS A GOOD SETTLEMENT?
Ultimately, whether you pick option 1, 2 or 3 above has to be your decision. The settlement has both good and bad components.
On the one
hand, the proposed settlement enables every class member to make a claim
for 100% of a variety of expenses or losses incurred for many different
categories of damages for which there is documentation, such as veterinary
expenses, usual death-related expenses, and the cost of your pet. In
addition, it allows for recovery of up to $900 outside of any documented
loss, to the degree the Claims Administrator believes that payment is
appropriate.
Even if you pursued an individual case, it is possible that you would not obtain as much relief as the settlement provides. In general, the cash relief available to you under the proposed settlement might be viewed as good to excellent. For this reason, we anticipate that most pet owners will participate in the settlement and send in a claim form before the deadline.
On the other hand, the proposed settlement falls short in the following respects:
Ongoing future expenses. For those of you with living pets with ongoing future expenses – such as treatment, special foods, medications, or otherwise – the settlement does not state explicitly that it will cover these expenses. However, the Claims Administrator has indicated in response to a direct inquiry regarding this topic that these costs will be covered. According to the Claims Administrator, the proper way to do this is to have your veterinarian write an estimate for the cost necessary for future treatment and prescription foods and then indicate the estimated amount under Section C, “Additional Expenses,” on page 4 of the claim form and attach a copy of your veterinarian’s written and signed estimate to the Claims Administrator.
Testing. Despite our demands for more stringent testing requirements, the Defendants agreed to test the pet food for toxic substances known as melamine and cyanauric acid for a period of one year. We were unable to have the settlement include more stringent testing requirements, despite the fact that we know many of us very much want this type of relief. However, the Defendants are likely to want to avoid this kind of tragedy and litigation again. It will be in their best interest to increase testing, quality control, and rapid response to such a problem in the future.
No apology or explanation. Again, despite our demands, we were unable to modify the settlement agreement to include a public apology and explanation for what happened from the Defendants.
Cost
of pet food. Under the proposed settlement, the Defendants will
not pay more than $250,000 to reimburse class members for the cost of
the recalled pet food. We believe millions of dollars in pet food were
sold. While the cost of the pet food is a minor damage compared to the
damage to your pet, we wanted to point out this issue in the proposed
settlement.
Healthy Pet Testing. There is a cumulative limit of $400,000.00 that can be made available to reimburse testing of pets whose health turned out to be little affected or unaffected by the contaminated food. We simply don’t know whether this is enough to cover all potential claims of this type.
RECAP
Questions
should be directed to the Claims Administrator, as that is who will
actually be making decisions on any claim, and coordinating distribution
of the payouts to pet owners.
The toll free number of
the Claims Administrator is: 1-800-392-7785
To send an email inquiry
to the claims administrator (please visit the site and first read the
Frequently Asked Questions): http://www.petfoodsettlement.
To get general information
and forms via the Internet: http://www.petfoodsettlement.
If you want to opt out:
August 15, 2008, postmark date. No email or other electronic
means may be used to opt out.
If you want to comment or
object: September 12, 2008, postmark date. (Must
send to BOTH the court and to one of the negotiating attorneys).
If you want
to participate: fax, mail (postmarked) or email .PDF forms to
the Claims Administrator by November 24, 2008. Beware
of last minute foul-ups, jamming of fax machines, electronic network
problems, etc. Decide as soon as you reasonably can, and plan
to act before the deadline, leaving yourself enough time to deal with
any last-minute problems that may arise.
If we have
the only copy of receipts, veterinary bills or food labels and they
are needed for your claim, we will get those to you as soon as you request
them.
Our own
pet food recall website is available to you at www.theanimallawcenter.com. Click on the pet food recall link.
Here there are discussion boards and forums as well as updates and information
on the settlement as well as links to other informative websites.
We feel
that this settlement in many ways is a huge win. We know it is far from
perfect and does not come close to repairing the ones who suffered or
replacing those who were lost. This event will go down in history as
one of the most unfortunate mishandling of consumer products. Hopefully,
it will set the precedent that our pets are more than just property.
They are members of families, service animals we depend on, and friends
that stand without judgment at our side and we will fight against those
who try to damage them or take them away as we did in this litigation.
Thank you
for your commitment to this cause. We wish you the best moving forward
and are here for you if you have any questions or concerns.
Sincerely,
/s/Jennifer
Reba Thomaidis
Jennifer Reba Thomadis
Attorney
at Law