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In re: Clark v. The Nutro Company, Case No. 37-2011-00090424-CU-BT-CTL
Frequently Asked Questions
1. Who is the Plaintiff?
2. Who are the Defendants?
3. What is this lawsuit about?
4. How do I know if I am part of the Settlement?
5. What does the Settlement provide?
6. What are the terms of payment to Settlement Class Members?
7. How can I make a claim?
8. Was Bacillus in the Ultra products?
9. Can consumers in other states file similar lawsuits?
10. How do I file a similar lawsuit?
________________________________________
1. Who is the Plaintiff?
The plaintiff is Louise Clark, who brought a lawsuit on behalf of California consumers.
2. Who are the Defendants?
The Nutro Company and Mars, Incorporated
3. What is this lawsuit about?
The Action alleges that Defendants violated California law by improperly labeling and selling certain dog food products with a “Guaranteed Analysis” regarding the amount of Bacillus Species contained therein. Notwithstanding the accuracy of the afore-mentioned Bacillus labeling, at no time were animals ever at risk due to the presence or lack thereof of Bacillus in the dog food products at issue in this litigation. Rather, the allegation was that an additive (a probiotic) was substantially missing from the dog food products. The Action sought, among other things, an award of civil penalties against Defendants as a result of this alleged conduct.
Defendants deny each and every one of the allegations of the Complaint and have asserted a number of defenses to the claims.
4. How do I know if I am part of the Settlement?
The settlement claim period has ended, but the Settlement Class was defined as all persons who purchased the following Ultra brand dry dog kibble between April 1, 2007 and June 30, 2009, and Ultra brand dog biscuits between April 1, 2007 and April 30, 2011 that contained a “Guaranteed Analysis” regarding the amount of Bacillus Species contained therein:
a. Ultra Adult Dry
b. Ultra Large Breed Adult Dry
c. Ultra Large Breed Puppy Dry
d. Ultra Puppy Dry
e. Ultra Senior Dry
f. Ultra Small Breed Adult Dry
g. Ultra Weight Management Dry
h. Ultra Adult Biscuits
i. Ultra Puppy Biscuits
j. Ultra Senior Biscuits
k. Ultra Weight Management Biscuits
5. What did the Settlement provide?
The settlement claim period has ended. The parties reached settlement of this action, which the attorneys for the Settlement Class believe is fair, reasonable, adequate and in the best interest of Settlement Class Members. Defendants agreed to the settlement, without admitting liability, to avoid the costs and other burdens of continued litigation. The parties acknowledged that Defendants removed the Bacillus guarantee from the Ultra brand dry dog kibble in June of 2009 and from the Ultra brand dog biscuits in April of 2011. Subject to the terms and limitations listed in question 6, the proposed settlement provided payment to every Settlement Class Member who did not opt out of the settlement and returned a valid Claim Form of either (i) a $2.00 check, (ii) a $5.00 Gift Certificate towards the purchase of any Nutro product, or (iii) a donation of Defendants’ dry kibble product worth $5.00 at retail price to California animal shelters and/or animal charities of the Defendants’ choice after consultation with Class Counsel.
Subject to the total amount of the Settlement Administrator’s reasonable costs, fees, and expenses, Defendants established up to a $540,000.00 settlement fund for Settlement Class Members. All claims made were reduced from the fund and the unclaimed remainder will be contributed in the form of Defendants’ kibble products to California animal shelters and/or animal charities of Defendants’ choice. Defendants will meet and confer with Class Counsel concerning the animal shelters and charities that Defendants choose prior to making this donation. Defendants shall be required to submit a signed declaration under penalty of perjury establishing the value of the common fund at $540,000.00. Defendants are required to submit a signed declaration, if necessary, confirming the transfer of Defendants’ kibble products to the yet to be determined animal shelters and/or animal charities.
The parties also agreed to a stipend award to the class representative Louise Clark and payment by Defendants of Class Counsel’s attorneys’ fees (such payments will not diminish the settlement fund). As such, Plaintiff shall file a motion in Dept. 60 of the San Diego Superior Court wherein Plaintiff will petition the Court for an award of: (i) a class representative stipend award to Louise Clark in the amount of $2,500.00; and (ii) payment by Defendants of Class Counsel’s attorneys’ fees in the amount of $200,000.00. Defendants agreed not to oppose such request so long as it is within the stated limits.
6. What are the terms of payment to Settlement Class Members?
The settlement period has ended, but Settlement Class Members submitting a Claim Form had to represent that they saw and relied upon a “Guaranteed Analysis” that included a reference to Bacillus in purchasing the product. Settlement Class Members who did not opt out and who returned a valid Claim Form establishing their class membership will receive either (i) a $2.00 check, (ii) a $5.00 Gift Certificate towards the purchase of any Nutro product, or (iii) a donation of Defendants’ dry kibble product worth $5.00 at retail price to California animal shelters and/or animal charities of the Defendants’ choice after consultation with Class Counsel.
The Gift Certificates had the following characteristics:
a. They will be fully transferable;
b. They cannot be used in combination with other rebates or coupons for Nutro’s products;
c. Only one Gift Certificate may be used per purchase order;
d. A Gift Certificate may be used only once;
e. Each Gift Certificate will be valid for six (6) months from the date of issuance;
f. Gift Certificates will have no cash value; and
g. Gift Certificates will be redeemable for any Nutro product at participating pet specialty stores, including but not limited to, Petco and PetSmart.
Subject to the total amount of the Settlement Administrator’s reasonable costs, fees, and expenses, if the aggregate value of the Gift Certificates, Checks, and Donations to be awarded to Settlement Class Members pursuant to valid Claim Forms exceeds Five Hundred Forty Thousand Dollars ($540,000.00), then the value of the individual Gift Certificate, Check and Donation to be provided shall be reduced on a pro rata basis, such that the aggregate value of the award does not exceed $540,000.00. For example and by way of illustration only, if the aggregate value of the total number of Gift Certificates, Checks and Donations redeemed by Settlement Class Members is $1,080,000.00, then the value of each Gift Certificate, Check and Donation shall be reduced by fifty per cent (50%) to ensure that the aggregate value of the total number of Gift Certificates, Checks and Donations does not exceed $540,000.00.
The Settlement Administrator shall determine each authorized Settlement Class Member’s pro rata share based upon each Settlement Class Member’s Claim Form, the total number of valid Claim Forms received and the total amount of the Settlement Administrator’s reasonable costs, fees and expenses. Accordingly, the actual amount recoverable by each Settlement Class Member will not be determined until after the Claim Period has ended and all Claim Forms have been received. In no event shall an individual Settlement Class Member’s award exceed the individual recovery cap described above.
Defendants will reimburse the Settlement Administrator up to Fifteen Thousand Dollars ($15,000.00) toward reasonable costs, fees, and expenses of providing notice to the Settlement Class and administering the Settlement in accordance with the Settlement Agreement. To the extent, if any, that the Settlement Administrator’s reasonable costs, fees, and expenses exceed $15,000.00, up to $15,000.00 of that excess will be paid and subtracted from the $540,000.00 common fund available to Settlement Class Members after the Claim Period has ended and all Claim Forms have been received, but prior to distribution of the settlement award. Any costs, fees, and expenses associated with providing notice to the Settlement Class and administering the Settlement in accordance with the Settlement Agreement that exceed Thirty Thousand Dollars ($30,000.00) shall be the responsibility of Defendants.
Subject to the total amount of the Settlement Administrator’s reasonable costs, fees, and expenses, Defendants are not obligated to provide the full amount of $540,000.00 in Gift Certificates, Checks and Donations unless there are sufficient Claim Forms to reach this $540,000.00 limit and the Settlement Administrator’s reasonable costs, fees and expenses have not exceeded $15,000.00.
7. How can I make a claim?
The settlement period has ended.
8. Was Bacillus in the Ultra products?
Bacillus was included in the pre-mix blend with other vitamins and minerals. Bacillus is a probiotic that has been shown to improve digestive health.
9. Can consumers in other states file similar lawsuits?
Although consumers in other states are not part of this class action settlement, Nutro does not expect consumers in other states to file similar lawsuits.
10. How can I file a similar lawsuit?
Nutro cannot provide legal advice to consumers. |  |  | |  |
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