Case 2:19-md-02887-JAR-TJJ Document 129 Filed 07/06/21 Page 1 of 15 UNITED STATES DISTRICT COURT DISTRICT OF KANSAS IN RE: HILL’S PET NUTRITION, INC. DOG FOOD PRODUCTS LIABILITY MDL No. 2887 LITIGATION Case No. 2:19-md-02887-JAR-TJJ This Document Relates to All Cases, Except: Diana Anja Eichorn-Burkhard v. Hill’s Pet Nutrition, Inc. et al., Case No. 19-CV- 02672-JAR-TJJ; and Bone, et al. v. Hill’s Pet Nutrition, Inc., et al., Case No. 19-CV-02284-JAR-TJJ (cat and dry dog food-related claims only. This document DOES apply to all wet dog food-related claims in the Bone complaint). PLAINTIFFS’ REPLY MEMORANDUM OF LAW IN SUPPORT OF THEIR MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT, CERTIFICATION OF SETTLEMENT CLASS, APPROVAL OF CLASS NOTICE PROGRAM, AND APPOINTMENT OF SETTLEMENT CLASS COUNSEL AND SETTLEMENT ADMINISTRATOR AND RESPONSE TO OBJECTIONS Case 2:19-md-02887-JAR-TJJ Document 129 Filed 07/06/21 Page 2 of 15 TABLE OF CONTENTS TABLE OF AUTHORITIES .......................................................................................................... ii INTRODUCTION .......................................................................................................................... 1 ARGUMENT .................................................................................................................................. 2 I. The Court Should Grant Final Approval to the Settlement ................................................ 2 II. The Objections, While Heartfelt, Do Not Have Legal Merit .............................................. 4 A. Vicky Swaim ........................................................................................................... 4 B. Leiann Hawley ........................................................................................................ 6 CONCLUSION ............................................................................................................................... 9 i Case 2:19-md-02887-JAR-TJJ Document 129 Filed 07/06/21 Page 3 of 15 TABLE OF AUTHORITIES CASES Aragon v. Clear Water Prod. LLC, No. 15-cv-02821-PAB-STV, 2018 WL 6620724 (D. Colo. Dec. 18, 2018) .............................. 4 Browning v. Yahoo! Inc., No. 04-cv-01463-HRL, 2007 WL 4105971 (N.D. Cal. Nov. 16, 2007) ..................................... 6 Elna Sefcovic, LLC v. TEP Rocky Mountain, LLC, 807 F. App’x 752 (10th Cir. 2020) ............................................................................................. 4 Fager v. CenturyLink Commc’ns, LLC, No. 14-cv-00870-JCH-KK, 2015 WL 13298517 (D.N.M. June 25, 2015) ................................ 4 Gradie v. C.R. England, Inc., No. 2:16-cv-00768-DN, 2020 WL 6827783 (D. Utah Nov. 20, 2020) ...................................... 6 Hall v. AT & T Mobility LLC, No. 07-cv-05325-JLL, 2010 WL 4053547 (D.N.J. Oct. 13, 2010) ............................................ 6 Hapka v. CareCentrix, Inc., No. 2:16-cv-02372-KGG, 2018 WL 1871449 (D. Kan. Feb. 15, 2018) ................................. 3, 6 In re Davita Healthcare Partners, Inc., No. 12-cv-02074-WJM-CBS, 2015 WL 3582265 (D. Colo. June 5, 2015) ............................... 2 In re Samsung Top-Load Washing Mach. Mktg., Sales Pracs. & Prod. Liab. Litig., 997 F.3d 1077 (10th Cir. 2021) .................................................................................................. 2 In re Syngenta AG MIR 162 Corn Litig., 357 F. Supp. 3d 1094 (D. Kan. 2018) ......................................................................................... 3 In re Uponor, Inc., F1807 Plumbing Fittings Prod. Liab. Litig., No. 11-md-02247-ADM-JJK, 2012 WL 2512750 (D. Minn. June 29, 2012) ............................ 6 Nakamura v. Wells Fargo Bank, N.A., No. 17-4029-DDC-GEB, 2020 WL 5118070 (D. Kan. Aug. 31, 2020) .................................... 8 O’Dowd v. Anthem, Inc., No. 14-cv-02787-KLM-NYW, 2019 WL 4279123 (D. Colo. Sept. 9, 2019) ............................ 2 Peace Officers' Annuity and Benefit Fund of Georgia v. DaVita Inc., No. 17-CV-0304-WJM-NRN, 2021 WL 1387110 (D. Colo. Apr. 13, 2021) ............................ 8 ii Case 2:19-md-02887-JAR-TJJ Document 129 Filed 07/06/21 Page 4 of 15 Rothe v. Battelle Mem’l Inst., No. 1:18-cv-03179-RBJ, 2021 WL 2588873 (D. Colo. June 24, 2021) ..................................... 3 Wal-Mart Stores, Inc. v. Visa U.S.A., Inc., 396 F.3d 96 (2d Cir. 2005) ......................................................................................................... 4 Watson v. Ray, 90 F.R.D. 143 (S.D. Iowa 1981) ................................................................................................. 3 OTHER AUTHORITIES Federal Rule of Civil Procedure 23 ........................................................................................ 2, 7, 8 iii Case 2:19-md-02887-JAR-TJJ Document 129 Filed 07/06/21 Page 5 of 15 INTRODUCTION Plaintiffs1 respectfully submit this reply in support of their motion for final approval of the proposed Settlement, final certification of the Settlement Class, approval of the Notice program, and confirmation of the appointment of Settlement Class Counsel, the Class Representatives, and the Settlement Administrator, ECF No. 119. As detailed in the opening brief, the $12.5 million Settlement is an outstanding result for the Settlement Class, and the Court should grant it final approval. ECF No. 120. Importantly, the Settlement Class agrees. The deadline for filing requests for exclusion and objections, June 21, 2021, has passed (see Prelim. Approval Order, ECF No. 105 at 13), and the reaction of the Settlement Class is overwhelmingly positive. A total of just two requests for exclusion (Joseph M. Gerrety and Patty J. Gardner) have been received from a Settlement Class that likely numbers in at least the tens of thousands,2 a miniscule percentage. See Declaration of Jeanne C. Finegan, APR, Concerning Implementation of Class Notice, ECF No. 127-1 at ¶ 13 (“Finegan Declaration” or “Finegan Decl.”). Furthermore, there have been only two purported objections to the proposed Settlement (Leiann Hawley and Vicky Swaim).3 See id. at ¶ 14; Objection of Leiann Hawley, ECF Nos. 124 (original objection), 128 (revised objection).4 Notably, 1 Capitalized terms shall have the meaning the Class Settlement Agreement ascribes to them. See generally Class Settlement Agreement, ECF No. 98-1. 2 While still subject to review for validity, more than 30,000 claims have been received. 3 Ms. Swaim’s objection, which was received by the Settlement Administrator but not submitted to the Court, and a copy of Ms. Hawley’s objection were filed as Exhibit A to the Finegan Declaration. ECF No. 127-1 at 10-19. 4 The parties also received a letter from Melissa Cieto, which is attached hereto as Exhibit 1 (with her personal email address redacted). Ms. Cieto wanted the Parties to be aware of the passing of her dog Brett and his unique story, but did not object to any terms of the Settlement. She expressed her intention not to participate in the Settlement and, as of July 6, 2021 (four days after the deadline for the submission of all claims), the Claims Administrator has not received a claim from her. 1 Case 2:19-md-02887-JAR-TJJ Document 129 Filed 07/06/21 Page 6 of 15 no governmental entity that received Notice has objected to the Settlement. As explained below, the objections to final approval of the proposed Settlement, while reflecting the understandable anger and anguish of the loss of a beloved family pet, are without legal merit. Accordingly, Plaintiffs respectfully submit that the Court should overrule the objections in their entirety and grant the motion for final approval of the Settlement. ARGUMENT I. The Court Should Grant Final Approval to the Settlement In determining whether to finally approve a proposed class action settlement as fair, reasonable, and adequate, courts in the Tenth Circuit consider the factors set forth in Federal Rule of Civil Procedure 23(e)(2) as well as the four factors the Tenth Circuit has traditionally considered in evaluating class action settlements. In re Samsung Top-Load Washing Mach. Mktg., Sales Pracs. & Prod. Liab. Litig., 997 F.3d 1077, 1087 (10th Cir. 2021). In assessing whether final approval is appropriate, Tenth Circuit courts also consider the reaction of the class to the proposed settlement. O’Dowd v. Anthem, Inc., No. 14-cv-02787-KLM-NYW, 2019 WL 4279123, at *12 (D. Colo. Sept. 9, 2019) (listing the “reaction of class members to the proposed settlement” as an additional factor that may be relevant to final approval); In re Davita Healthcare Partners, Inc., No. 12-cv-02074-WJM-CBS, 2015 WL 3582265, at *3 (D. Colo. June 5, 2015) (“The reaction of the class to the proffered settlement . is perhaps the most significant factor to be weighed in considering its adequacy . .”). A low number of objections and exclusions weighs in favor of granting final approval. E.g., Hapka v. CareCentrix, Inc., No. 2:16-cv-02372-KGG, 2018 WL 1871449, at *5 (D. Kan. Feb. 15, 2018) (“The low percentage of objections demonstrates the reasonableness of the Settlement and supports the Settlement’s approval.”). While Plaintiffs fully addressed Rule 23(e)(2) and the traditional Tenth Circuit factors in their opening brief, ECF No. 2 Case 2:19-md-02887-JAR-TJJ Document 129 Filed 07/06/21 Page 7 of 15 120, Plaintiffs here provide the Court with further detail as to the reaction of the Settlement Class to the proposed Settlement, now that the deadline to object or opt out has passed. As discussed above, the Settlement Class’