Blaszkowski et al v. Mars Inc. et al

Filing 465

REPLY to Response to Motion re 457 Plaintiff's MOTION for Extension of Time to Amend to Add and/or Substitute Plaintiff (As to Non-Natura Defendants' Response) filed by All Plaintiffs. (Attachments: # 1 Exhibit "A")(MacIvor, Catherine)

Blaszkowski et al v. Mars Inc. et al

Doc. 465

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA MIAMI DIVISION CASE NO. 07-21221 CIV ALTONAGA/Turnoff RENEE BLASZKOWSKI, et al., individually and on behalf of others similarly situated, Plaintiffs/Class Representatives, vs. MARS INC., et al. Defendants. _____________________________/ PLAINTIFFS' REPLY IN SUPPORT OF MOTION TO ADD AND/OR SUBSTITUTE ARNA CORTAZZO AS A PLAINTIFF/CLASS REPRESENTATIVE (AS TO NONNATURA DEFENDANTS' RESPONSE) While the non-Natura Defendants take no position as to adding or dropping Ms. Cortazzo, they disagreed with the Plaintiffs' position that claims against the non-Natura Defendants will likely be void based upon the settlement agreement reached in In re Pet Food Products Liability Litigation, Case No. 1:2007CV02867, MDL No. 1850 ("Multi-District Case"). [DE 462]. Given that the non-Natura Defendants take this disingenuous position despite the fact that they have refused to stipulate that the non-Natura Plaintiffs' claims are not encompassed by this settlement, the non-Natura Defendants have clearly demonstrated their inclination to engage in smoke and mirror games. In such an effort, the non-Natura Defendants claim that "[t]he release in the Settlement Agreement of the Pet Food Recall Litigation deals only with [pet food and/or treats that may have been contained contaminated wheat gluten or rice protein concentrate ("Recalled Pet Food Products")] and Plaintiffs' claims in this case include products other than Recalled Pet Food Products." [DE 462 p. 2].

MALTZMAN FOREMAN, PA, 2 South Biscayne Boulevard, Miami, FL 33131 Tel: [phone] / Fax: [phone]

Dockets.Justia.com

However, the release in the Multi-District Case class action settlement agreement is overbroad (requiring release of all known and unknown claims alleged against the Defendants for the Plaintiffs' pet food purchase) and over-inclusive to the point of including the non-Natura Plaintiffs' claims in this action.1 Specifically, in the settlement agreement reached in the MultiDistrict Case, the non-Natura Defendants will obtain a release, waiver, and discharge of all claims raised in each of the 113 consolidated U.S. cases and a number of unknown Canadian cases,2 including giving the released defendants a general waiver of unknown claims from the entire class and binding the Multi-District Case settlement class with restrictive covenants against participating in any lawsuits against the released defendants, even as a member of a settlement class, without a limitation as to time or a defined settlement class period. Accordingly, while the scope and time period set forth in the Multi-District Case may have been limited to recalled pet food products (which is at variance with the instant action), the parties, issues, products, and class periods between the two cases sufficiently overlap such that the resulting waiver, release, and discharge of claims would waive and discharge all of the Plaintiffs' claims in this action against the non-Natura Defendants. II. The settlement reached in the Multi-District Case purports to include Plaintiffs as part of the settlement class The Preliminary Approval Order certifies a class for settlement purposes of: All persons and entities who purchased, used or obtained, or whose pets used or consumed Recalled Pet Food Products.3
Not only is this instant case not excluded from the settlement agreement reached in the Multi-District Case, but the definition of "Release Claims" and "Recalled Pet Food Products" is so overbroad that, if approved, could be used by the non-Natura Defendants to surreptitiously seek a dismissal of all or most of the Plaintiffs' claims in this action, except for those claims against Natura. 2 At least one of these consolidated cases involved claims that are similar to the claims in this action. As an example, one case brought a claim for violation of a state's deceptive trade practices act. See Complaint for Picus v. Wal-Mart Stores, Inc., et al., Case No.: CV-S-00682-PMP-LRL (attached hereto as Exhibit "A"). 3 The Multi-District Case settlement agreement defines "Recalled Pet Food Products" as: Any pet food product and/or treat products or any ingredient thereof that were recalled by any 2 CASE NO. 07-21221 CIV ALTONAGA/Turnoff
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1

[MacIvor Decl. at 1.VV (attached as Exhibit "B" to DE 421)]. This broad definition arguably includes all the non-Natura Plaintiffs and members of the putative class in this action if they simply purchased, used or obtained, or their pets used or consumed, one of the thousands of recalled pet food products, irrespective of time. Moreover, there is no doubt that the Defendants intend to include the named Plaintiffs as part of the Multi-District Case settlement because these named Plaintiffs received claim forms for the Multi-District Case. [MacIvor Dec. at ¶XX (attached as Exhibit "B" to DE 421)]. Thus, it appears that the class certified for settlement in the Multi-District Case includes the non-Natura Plaintiffs in this action. III. The Multi-District Case settlement includes all non-Natura Defendants in this action The settlement agreement purports to dismiss some approximate 58 defined pet food "Defendants," and "any and all entities and individuals that are alleged to have handled, distributed, purchased for resale and/or redistribution, supplied, manufactured and/or sold or offered for sale Recalled Pet Food Products" including some approximate 210 specifically named "Released Entities" as well as well as "their respective insurers, parent companies, subsidiaries, affiliates, and all of their respective franchisees, and the officers, directors, trustees, shareholders, unit holders, partners, governors, managers, employees, agents, assignees, successors and heirs of all of them." [Stl. Agr. ¶¶1.T, 1.RR]. Essentially, the settlement agreement attempts to release every non-Natura Defendant in the instant action.4 IV. The Multi-District Case settlement involves products that are the subject of this case

Released Entity between March 16, 2007 and the present. [Stl. Agr. ¶1.PP]. Although the Multi-District Case settlement agreement refers to the date pet food products were recalled, it does not define when the products were manufactured, purchased, consumed or advertised. 4 The Multi-District Case settlement agreement would also reach certain entities in the Defendant class as well. 3 CASE NO. 07-21221 CIV ALTONAGA/Turnoff
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Although the settlement agreement does not provide a list of Recalled Pet Food Products, the settlement website provides a 17-page list of approximately 1,100 different recalled pet food products, which presumably are the defined "Recalled Pet Food Products." Many of these products were used by the Plaintiffs in this action. V. The Multi-District Case settlement appears to resolve claims raised in the this case The settlement agreement contains a broad waiver, release and dismissal with prejudice which the non-Natura Defendants will likely assert resolves the instant action. For example, paragraph 3.A. of the settlement agreement provides: Upon entry of the Final Approval Order and Judgment by the MDL Court and all Canadian Courts, the Releasing Parties forever release and discharge all Released Claims against all Defendants and all Released Entities. For purposes of this Settlement Agreement, "Released Claims" are all claims, demands, actions, suits, and/or causes of action that have been brought or could have been brought, are currently pending or were pending, or are ever brought in the future, by any Settlement Class Member against any Defendant or Released Entity, in any forum in Canada or the United States (including their territories and, in the case of the United States, Puerto Rico), whether known or unknown, asserted or unasserted, under or pursuant to any statute, regulation, common law or equity, that relate in any way, directly or indirectly, to facts, acts, events, transactions, occurrences, courses of conduct, representations, omissions, circumstances or other matters referenced in any claim raised (including, but not limited to, any claim that was raised against any Released Entity) in the Pet Food Recall Litigation. (emphasis added).5 VI. The Multi-District Case settlement purports to preclude any other litigation The settlement agreement includes many restrictions aimed at insulating the "Defendants" and each "Released Entity" from further litigation from not only the named plaintiffs, but the entire settlement class.
5

For example, paragraph 3.B of the settlement

Because "Pet Food Recall Litigation" is defined at ¶1.KK. of the Settlement Agreement as the "U.S. Actions" and the "Canadian Actions" which are further defined as "each of the actions that are part of, or become part of, the coordinated proceedings of In re Pet Food Products Liability Litigation, MDL No. 1850, in the United District Court for District of New Jersey" and the "actions listed in Exhibit 1 to the Settlement Agreement," respectively (which, the publicly posted settlement agreement has no Exhibit 1), the settlement agreement purports to release and discharge any claim brought by our Plaintiffs if those claims were brought in any of the 113 actions brought within the United States and any claims brought in Canada. 4 CASE NO. 07-21221 CIV ALTONAGA/Turnoff
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agreement contains a covenant not to sue: The Releasing Parties and each of them agree and covenant not to sue or prosecute, institute or cooperate in the institution, commencement, filing or prosecution of any suit or proceeding in any forum against any Released Entity, or against any other person or entity who may claim contribution or indemnity from or against any Released Entity, based upon or related to any Released Claim. (emphasis added). Additionally, paragraph 3.C. of the settlement agreement provides: It is an essential element of the Agreement that the Released Entities obtain the fullest possible release from further liability to anyone relating to the Released Claims, and it is the intention of the Parties to this Agreement that the Agreement eliminate all further risk and liability of the Released Entities relating to the Released Claims. Accordingly, the Parties agree that the MDL Court and Canadian Courts shall include in the Final Approval Order and Judgment an injunction that permanently enjoins the Releasing Parties from (i) filing, commencing, prosecuting, continuing, maintaining, intervening in, participating in (as class members or otherwise) or receiving any benefits from any lawsuit, arbitration, administrative or regulatory proceeding or order in any jurisdiction based on any or all Released Claims against one or more Released Entities or against any person or entity who may claim over against any Released Entity for contribution or indemnity; (ii) instituting, continuing, maintaining, organizing class members in, or joining with class members in, any action or arbitration, including but not limited to a purported class action, in any jurisdiction, against one or more Released Entities, or against any person or entity who may claim over against any Released Entity for contribution or indemnity, based on, involving, or incorporating, directly or indirectly, any or all Released Claims; and (iii) filing, commencing, prosecuting, intervening in, participating in (as class members or otherwise) or receiving any benefits from any lawsuit, arbitration, administrative or regulatory proceeding, or order in any jurisdiction based on an allegation that an action taken by the Released Entities, which is in compliance with the provisions of the Settlement Agreement, violates any legal right of any Settlement Class Member. (emphasis added). Finally, in addition to a request for a dismissal with prejudice, the settlement agreement includes a waiver of the provisions of Section 1542 of the Civil Code of California, which provides: A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.

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MALTZMAN FOREMAN, PA, 2 South Biscayne Boulevard, Miami, FL 33131 Tel: [phone] / Fax: [phone]

As such, the Plaintiffs respectfully submit to this Court that this overbroad release, if approved, will void the claims of the non-Natura Plaintiffs asserted in this action. Dated: September 3, 2008 Miami, FL /s Catherine J. MacIvor CATHERINE J. MACIVOR (FBN 932711) [e-mail] One Biscayne Tower 2 South Biscayne Boulevard -Suite 2300 Miami, Florida 33131 Tel: [phone] / Fax: [phone] PATRICK N. KEEGAN [e-mail] JASON E BAKER [e-mail] KEEGAN & BAKER, LLP 4370 La Jolla Village Drive Suite 640 San Diego, CA 92122 Tel: [phone] / Fax [phone] Attorneys for Plaintiffs

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MALTZMAN FOREMAN, PA, 2 South Biscayne Boulevard, Miami, FL 33131 Tel: [phone] / Fax: [phone]

CERTIFICATE OF SERVICE WE HEREBY CERTIFY that the foregoing was electronically filed with the Clerk of the Court via CM/ECF on September 3, 2008. We also certify that the foregoing was served on all counsel or parties of record on the attached Service List either via transmission of Notices of Electronic Filing generated by CM/ECF or in some other authorized manner for those counsel or parties who are not authorized to receive electronic Notices of Filing. /s Catherine J. MacIvor Catherine J. MacIvor

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MALTZMAN FOREMAN, PA, 2 South Biscayne Boulevard, Miami, FL 33131 Tel: [phone] / Fax: [phone]

SERVICE LIST CASE NO. 07-21221 ALTONAGA/Brown CATHERINE J. MACIVOR [e-mail] JEFFREY B. MALTZMAN [e-mail] JEFFREY E. FOREMAN [e-mail] DARREN W. FRIEDMAN [e-mail] MALTZMAN FOREMAN, PA One Biscayne Tower 2 South Biscayne Boulevard -Suite 2300 Miami, Florida 33131 Tel: [phone] / Fax: [phone] Attorneys for Plaintiffs EDGAR R. NIELD [e-mail] 4370 La Jolla Village Drive Suite 640 San Diego, CA 92122 Telephone: [phone] Facsimile: 858-552-6749 Attorney for Plaintiffs Attorneys for Defendants Menu Foods, Inc. and Menu Foods Income Fund LONNIE L. SIMPSON E-Mail: [e-mail] S. DOUGLAS KNOX E-Mail: [e-mail] DLA PIPER US LLP 100 N. Tampa Street, Suite 2200 Tampa, Florida 33602-5809 Telephone: [phone] Facsimile: [phone] Attorneys for Defendants Menu Foods, Inc. and Menu Foods Income Fund WILLIAM C. MARTIN E-Mail: [e-mail] DLA PIPER RUDNICK GRAY CARY US LLP 203 North LaSalle Street Suite 1900 Chicago, Illinois 60601-1293 Attorneys for Defendants Menu Foods, Inc. and Menu Foods Income Fund ALEXANDER SHAKNES E-Mail: [e-mail] AMY W. SCHULMAN E-Mail: [e-mail] DLA PIPER US LLP 1251 Avenue of the Americas New York, New York 10020 Telephone: [phone] PATRICK N. KEEGAN [e-mail] JASON E BAKER [e-mail] KEEGAN & BAKER, LLP 4370 La Jolla Village Drive Suite 640 San Diego, CA 92122 Telephone: [phone] Facsimile: 858-552-6749 Attorneys for Plaintiffs

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MALTZMAN FOREMAN, PA, 2 South Biscayne Boulevard, Miami, FL 33131 Tel: [phone] / Fax: [phone]

MARK C. GOODMAN [e-mail] SQUIRE, SANDERS & DEMPSEY LLP One Maritime Plaza Suite 300 San Francisco, CA 94111-3492 Telephone: [phone] Facsimile: [phone]

JOHN B.T. MURRAY, JR. E-Mail: [e-mail] ROBIN L. HANGER E-Mail: [e-mail] BARBARA BOLTON LITTEN [e-mail] SQUIRE, SANDERS & DEMPSEY LLP 1900 Phillips Point West 777 South Flagler Drive Attorneys for Defendants PETCO Animal West Palm Beach, Florida 33401-6198 Supplies Stores Inc., PetSmart, Inc., Wal-Mart Telephone: [phone] Facsimile: [phone] Stores, Inc. and Target Corporation Attorneys for Defendants PETCO Animal Supplies Stores Inc., PetSmart, Inc., Wal-Mart Stores, Inc. and Target Corporation JEFFREY S. YORK E-Mail: [e-mail] MICHAEL GIEL E-Mail: [e-mail] McGUIRE WOODS LLP 50 N. Laura Street, Suite 3300 Jacksonville, FL 32202 Telephone: [phone] Facsimile: [phone] Attorneys for Defendant Natura Pet Products, Inc. OMAR ORTEGA Email: [e-mail] DORTA & ORTEGA, P.A. Douglas Entrance 800 S. Douglas Road, Suite 149 Coral Gables, Florida 33134 Telephone: [phone] Facsimile: [phone] Attorneys for Defendant Mars, Inc. and Mars Petcare U.S. and Nutro Products, Inc. ALAN G. GREER [e-mail] RICHMAN GREER WEIL BRUMBAUGH MIRABITO & CHRISTENSEN 201 South Biscayne Boulevard Suite 1000 Miami, Florida 33131 Telephone: [phone] Facsimile: [phone] Attorneys for Defendants The Iams Co. KRISTEN E. CAVERLY E-Mail: [e-mail] HENDERSON & CAVERLY LLP 16236 San Dieguito Road, Suite 4-13 P.O. Box 9144 (all US Mail) Rancho Santa Fe, CA 92067-9144 Telephone: [phone] x)101 Facsimile: 858-756-4732 Attorneys for Natura Pet Products, Inc.

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MALTZMAN FOREMAN, PA, 2 South Biscayne Boulevard, Miami, FL 33131 Tel: [phone] / Fax: [phone]

BENJAMIN REID E-Mail: [e-mail] ANA CRAIG E-Mail: [e-mail] CARLTON FIELDS, P.A. 100 S.E. Second Street, Suite 4000 Miami, Florida 33131-0050 Telephone: [phone] Facsimile: [phone] Attorneys for Defendants Hill's Pet Nutrition, Inc. KARA L. McCALL [e-mail] SIDLEY AUSTIN LLP One S. Dearborn Street Chicago, ILL 60633 Telephone: [phone] Attorneys for Defendants Hill's Pet Nutrition, Inc.

JOHN J. KUSTER [e-mail] JAMES D. ARDEN [e-mail] SIDLEY AUSTIN LLP 787 Seventh Avenue New York, New York 10019-6018 Telephone: [phone] Attorneys for Defendants Hill's Pet Nutrition, Inc. RICHARD FAMA E-Mail: [e-mail] JOHN J. McDONOUGH E-Mail: [e-mail] COZEN O'CONNOR 45 Broadway New York, New York 10006 Telephone: [phone] Facsimile: [phone] Attorneys for Defendant Del Monte Foods

SHERRIL M. COLOMBO E-Mail: [e-mail] COZEN O'CONNOR 200 South Biscayne Boulevard Suite 4410 Miami, Florida 33131 Telephone: [phone] Facsimile: [phone] Attorneys for Defendant Del Monte Foods Co.

DANE H. BUTSWINKAS E-Mail: [e-mail] PHILIP A. SECHLER E-Mail: [e-mail] THOMAS G. HENTOFF E-Mail: [e-mail] PATRICK J. HOULIHAN E-Mail: [e-mail] AMY R. DAVIS [e-mail] JULI ANN LUND [e-mail] WILLIAMS & CONNOLLY LLP 725 12th Street, N.W. Washington, DC 20005 Telephone: [phone] Attorneys for Defendants Nutro Products, Inc. Mars, Incorporated and Mars Petcare U.S.

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MALTZMAN FOREMAN, PA, 2 South Biscayne Boulevard, Miami, FL 33131 Tel: [phone] / Fax: [phone]

JOHN F. MULLEN E-Mail: [e-mail] COZEN O'CONNOR 1900 Market Street Philadelphia, PA 19103 Telephone: [phone] Facsimile: [phone] Attorneys for Defendant Del Monte Foods, Co.

CAROL A. LICKO E-Mail: [e-mail] HOGAN & HARTSON Mellon Financial Center 1111 Brickell Avenue, Suite 1900 Miami, Florida 33131 Telephone [phone] Facsimile [phone] Attorneys for Defendants Nestle Purina Petcare Co.

ROBERT C. TROYER E-Mail: [e-mail] HOGAN & HARTSON 1200 17th Street One Tabor Center, Suite 1500 Denver, Colorado 80202 Telephone: [phone] Facsimile: [phone] Attorneys for Defendants Nestle Purina Petcare Co. JAMES K. REUSS E-Mail: [e-mail] LANE ALTON & HORST Two Miranova Place Suite 500 Columbus, Ohio 43215 Telephone: [phone] Attorneys for Defendant The Kroger Co. of Ohio

CRAIG A. HOOVER E-Mail: [e-mail] MIRANDA L. BERGE E-Mail: [e-mail] HOGAN & HARTSON L.L.P. 555 13th Street, N.W. Washington, D.C. 20004 Telephone: [phone] Facsimile: [phone] Attorneys for Defendants Nestle Purina Petcare Co. D. JEFFREY IRELAND E-Mail: [e-mail] BRIAN D. WRIGHT E-Mail: [e-mail] LAURA A. SANOM E-Mail: [e-mail] FARUKI IRELAND & COX 500 Courthouse Plaza, S.W. 10 North Ludlow Street Dayton, Ohio 45402 Attorneys for Defendant The Iams Co.

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MALTZMAN FOREMAN, PA, 2 South Biscayne Boulevard, Miami, FL 33131 Tel: [phone] / Fax: [phone]

W. RANDOLPH TESLIK CRAIG P. KALIL E-Mail: [e-mail] E-Mail: [e-mail] ANDREW J. DOBER JOSHUA D. POYER E-Mail: [e-mail] E-Mail: [e-mail] AKIN GUMP STRAUSS HAUER & FELD ABALLI MILNE KALIL & ESCAGEDO 2250 Sun Trust International Center LLP 1333 New Hampshire Avenue, NW One S.E. Third Avenue Washington, D.C. 20036 Miami, Florida 33131 Telephone: [phone] Telephone: [phone] Facsimile: [phone] Facsimile: [phone] Attorneys for Defendants New Albertson's Inc. Attorneys for New Albertson's Inc. and and Albertson's LLC Albertson's LLC RALPH G. PATINO E-Mail: [e-mail] DOMINICK V. TAMARAZZO E-Mail: [e-mail] CARLOS B. SALUP E-Mail: [e-mail] PATINO & ASSOCIATES, P.A. 225 Alcazar Avenue Coral Gables, Florida 33134 Telephone: [phone] Facsimile: [phone] Attorneys for Defendants Pet Supplies "Plus" and Pet Supplies Plus/USA, Inc. HUGH J. TURNER, JR. E-Mail: [e-mail] AKERMAN SENTERFITT & EDISON 350 E. Las Olas Boulevard Suite 1600 Fort Lauderdale, Florida 33301-2229 Telephone: [phone] Facsimile: [phone] Attorneys for Defendant Publix Super Markets, Inc. C. RICHARD FULMER, JR. E-Mail: [e-mail] FULMER, LEROY, ALBEE, BAUMANN, & GLASS 2866 East Oakland Park Boulevard Fort Lauderdale, Florida 33306 Telephone: [phone] Facsimile: [phone] Attorneys for Defendant The Kroger Co. of Ohio ROLANDO ANDRES DIAZ E-Mail: [e-mail] PETER S. BAUMBERGER E-Mail: [e-mail] KUBICKI DRAPER 25 W. Flagler Street, Penthouse Miami, Florida 33130-1712 Telephone: [phone] Facsimile: [phone] Attorneys for Defendant Pet Supermarket, Inc.

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