UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF ILLINOIS 

____________________________________ 

 ) Judge Robert W. Gettleman 

Dennis Adkins, et al. ) 

 ) Case No. 12-cv-2871 

 Plaintiffs, ) 

v. ) CONSOLIDATED WITH: 

 ) Case No. 12-cv-880 (D. Conn) 

Nestle Purina PetCare Company, et al., ) Case No. 12-cv-4785 (N.D. Cal.) 

 ) Case No. 12-cv-4774 (N.D. Cal.) 

 Defendants. ) 

____________________________________) 

 ) 

 ) 

Faris Matin, et al. ) Case No. 13-cv-1512 

 ) 

 Plaintiffs, ) 

v. ) 

 ) 

Nestle Purina PetCare Company, et al., ) 

 ) 

 Defendants. ) 

____________________________________) 

 ) 

Rosalinda Gandara, et al. ) 

 ) Case No. 13-cv-4159 

 Plaintiffs, ) 

v. ) 

 ) 

Nestle Purina PetCare Company, et al., ) 

 ) 

 Defendants. ) 

____________________________________) 

ORDER GRANTING PRELIMINARY APPROVAL OF 

CLASS ACTION SETTLEMENT, APPROVAL OF PROPOSED FORM OF NOTICE, 

AND PRELIMINARY CERTIFICATION OF SETTLEMENT CLASS 

WHEREAS, Plaintiffs Dennis Adkins, Maria Higginbotham, Mary Ellis, Dwayne Holley, 

Kaiya Holley, Deborah Cowan, Barbara Pierpont, Cindi Farkas, Terry Safranek, Elizabeth 

Mawaka, Robin Pierre, Jill Holbrook, Mary Ellen Deschamps, Tracy Bagatta, Hal Scheer, S. 

Raymond Parker, Kristina Irving, Kathleen Malone, Jeannie Johnson, Rebel Ely, Rita DeSollar, 

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Faris Matin, Rosalinda Gandara, and Felicita Morales (collectively, “Plaintiffs”), and Defendants 

Nestle Purina PetCare Company (“Nestle Purina”) and Waggin’ Train, LLC (“Waggin’ Train”) 

(collectively, “Defendants,” and with Plaintiffs, the “Parties”) in the above-captioned litigation 

(the “Actions”), having applied pursuant to Federal Rule of Civil Procedure 23(e) for an Order 

preliminarily approving the proposed settlement of the Actions in accordance with the Amended 

Stipulation of Class Action Settlement entered into on May 28, 2014, and amended on October 

28, 2014 (“the Agreement”), which, together with the Exhibits annexed thereto, set forth the 

terms and conditions for a proposed settlement of the Actions between the Parties and for 

dismissal of the Actions upon the terms and conditions provided in the Agreement; 

WHEREAS, the Agreement contemplates certification by this Court of a Class solely for 

settlement purposes; and 

WHERAS, the Court having considered the Agreement and all Exhibits thereto. 

NOW, THEREFORE, this 28th day of October 2014, upon application of the parties, IT 

IS HEREBY ORDERED that: 

Preliminary Approval and Certification of the Settlement Class 

1. This Order incorporates herein, and makes a part hereof, the Agreement, its 

definitions, and its Exhibits thereto. Unless otherwise provided herein, the terms defined in the 

Agreement shall have the same meanings herein. 

2. The Court does hereby preliminarily approve the Agreement and the Settlement 

set forth therein, subject to further consideration at the Final Approval Hearing described below. 

3. The Court preliminarily finds that the proposed Settlement Class meets all of the 

applicable requirements under Rule 23(a) and 23(b)(3) of the Federal Rules of Civil Procedure. 

This Court hereby certifies the following Class for settlement purposes only: 

All persons and entities who purchased, used or obtained, or whose pets used or 

consumed a Dog Treat Product. The Settlement Class does not include Released Entities, 

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as well as any judicial officer presiding over the Actions, or their immediate families. 

The Settlement Class also will exclude those Settlement Class Members who have properly 

opted out of the Settlement Class. 

4. The Class Representatives, as set forth in Agreement, Section I.K, are 

conditionally appointed as representatives of the Settlement Class, and Robbins Geller Rudman 

& Dowd LLP (“Robbins Geller”) and Edelman Combs Latturner & Goodwin LLC (“Edelman 

Combs”) are conditionally appointed as Co-Lead Class Counsel. 

5. Entry of this Order is without prejudice to the rights of: (a) Defendants to oppose 

certification in the Actions, and seek decertification or modification of the Settlement Class as 

certified, should the settlement not be approved or implemented for any reason; or (b) the Parties 

to terminate the Agreement as provided in the Agreement. 

Final Approval Hearing; Right to Appear and Object 

6. A hearing on final settlement approval (the “Final Approval Hearing”) will be 

held on June 23, 2015 at 10 a.m. before the Honorable Robert W. Gettleman or other judge sitting 

in his stead, United States District Court for the Northern District of Illinois, Everett McKinley 

Dirksen United States Courthouse, 219 South Dearborn Street, Courtroom 1703, Chicago, IL 

60604, to consider, inter alia, the following: 

(a) whether the preliminary certification of the Settlement Class defined 

herein should be made final; 

(b) whether the Agreement and the terms and conditions of settlement are 

fair, reasonable, adequate, and in the best interests of the Settlement Class; 

(c) whether the proposed Notice Plan, as approved herein below, constitutes 

reasonable and the best practicable notice reasonably under the circumstances; 

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(d) whether this Court should enter an Order and Final Judgment dismissing 

with prejudice the Actions, pursuant to the Agreement; 

(e) whether the Court should permanently enjoin the assertion of any 

Released Claims against any of the Released Entities by Members of the Settlement Class or any 

other Releasing Parties; 

(f) whether any application for attorneys’ fees, expenses, costs, and Class 

Representative awards should be granted; 

(g) any objections to the Agreement that may be submitted by Settlement 

Class Members; and 

(h) any other matters as the Court may deem appropriate. 

7. Plaintiffs’ Counsel shall file with the Court: (i) any memoranda or other materials 

in support of final approval of the Settlement; and (ii) any application for an award of attorneys’ 

fees and expenses on or before April 24, 2015, and any reply brief in support thereof, on or 

before June 9, 2015. 

8. Any Member of the Settlement Class who or that has not properly filed a request 

to Opt Out in the manner set forth below may appear at the Final Approval Hearing in person or 

by counsel and may be heard, to the extent allowed by the Court, either in support of or in 

opposition to the fairness, reasonableness and adequacy of the Settlement, the dismissal with 

prejudice of the Actions, the entry of final judgment, and/or an application for attorneys’ fees or 

expenses; provided, however, that no person shall be heard in opposition to the Agreement, 

dismissal and/or entry of final judgment or an application for attorneys’ fees or expenses, and no 

papers or briefs submitted by or on behalf of any such person shall be accepted or considered by 

the Court, unless submitted to the Court and served upon Co-Lead Class Counsel and 

Defendants’ Counsel in accordance with Section IV.G of the Agreement and as set forth in 

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paragraph 9 below. Such person must (a) file with the Clerk of the Court a notice of such 

person’s intention to appear as well as a statement that indicates the basis for such person’s 

opposition and any documentation in support of such opposition, and (b) serve copies of such 

notice, statement, and documentation, as well as any other papers or briefs that such person files 

with the Court, either in person or by mail, upon Co-Lead Class Counsel and Defendants’ Counsel 

on or before May 25, 2015 (the “Objection Date”). Persons who fail to object in the manner and 

by the dates provided herein shall be deemed to have waived and shall forever be foreclosed from 

raising any such objections. 

9. Pursuant to Section VII.M of the Agreement, counsel for the Parties entitled to 

service of documentation described above are as follows: 

Co-Lead Class Counsel 

Rachel L. Jensen 

Stuart A. Davidson 

Phong L. Tran 

ROBBINS GELLER RUDMAN & DOWD LLP 

655 West Broadway, Suite 1900 

San Diego, California 92101 

Defendants’ Counsel 

Craig A. Hoover 

E. Desmond Hogan 

Miranda L. Berge 

HOGAN LOVELLS US LLP 

555 Thirteenth Street, NW 

Washington, DC 20004 

10. The date and time of the Final Approval Hearing shall be set forth in the Notice, 

but shall be subject to change by the Court without further notice to the Members of the 

Settlement Class other than that which may be docketed by the Court, on the Court’s website, 

and/or the settlement website. 

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11. The Court may approve the Settlement at or after the Final Approval Hearing with 

such modification(s) as may be consented to by the Parties to the Agreement and without further 

notice to the Settlement Class and Defendants. 

Form and Timing of Notice 

12. On or before December 12, 2014 (the “Notice Date”), class notice as described in 

the proposed Notice Plan provided in Exhibit 3 to the Agreement and proposed Notices in 

Exhibits 4, 5, and 6, individual and published class shall commence and be as follows: 

(a) Individual Notice 

(i) Individual notice shall be made by the Claims Administrator of all 

putative Settlement Class Members that can be identified by reasonable effort through review 

before Preliminary Approval of records of Defendants Nestle Purina and Waggin’ Train and 

Class Counsel. Defendants and Class Counsel, shall within twenty (20) calendar days of entry of 

the Preliminary Approval Order, provide to the Claims Administrator lists in computer readable 

format, of the applicable names and mailing addresses, for individual putative Settlement Class 

Members within Defendants’ and Class Counsel’s possession. Such information shall be 

provided to and maintained by the Claims Administrator on a confidential basis and shall not be 

shared with any other Party. 

(ii) Individual notice shall be by email where Defendants or Class 

Counsel actually possess the email address of a putative Settlement Class Member or his, her, or 

its counsel. The Claims Administrator shall provide notice by way of postcard substantially in 

the form of Exhibit 4 to any putative class member for whom Defendants or Class Counsel do 

not possess an email address or for any putative Settlement Class Member whose email 

notification is returned as undeliverable. 

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(iii) After the mailing has been completed, the Claims Administrator 

shall each certify to the Court the number of putative Settlement Class Members to whom 

individual notice was provided, the manner in which it was provided, and the pertinent 

information regarding changes of address and reissuance of notices. Such certification shall be 

submitted to the Court as part of Plaintiffs’ motion for final approval on or before April 24, 

2015. 

(b) Published Notice 

(i) The Claims Administrator shall cause the Short Form Notice 

substantially in the form of Exhibit 5 to be published in two consecutive editions of People 

Magazine and an edition of Sports Illustrated. 

(ii) Prominent internet banner notices will be displayed on a variety of 

websites purchased on the Conversant ad network which represents over 9,600 digital properties 

across all major content categories. Banners will also be placed on websites such as Facebook, 

MSN and Yahoo! It is estimated that the banners ads will result in hundreds of millions of 

impressions (unique instances in which the banner ad is displayed for view). 

(iii) Mobile banners will be purchased through Greystripe, a mobile 

network serving digital banners across over 9,500 properties within multiple categories including 

Auto, Lifestyle, Entertainment, Technology, Health, Finance and more. It is estimated that the 

mobile banners ads will result in over ten million impressions. 

(iv) A link to the settlement website established by the Claims 

Administrator shall also appear on the websites of Class Counsel and of Defendant Waggin’ 

Train and Nestle Purina PetCare Company no later than the Notice Date through the Effective 

Date of the Settlement, as defined in the Agreement. The Long Form Notice substantially in the 

Form of Exhibit 6 shall be available on the settlement website and provided to any Settlement 

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Class Member who requests a copy. Sponsored search ads will be bought across the three most 

highly-visited Internet search engines in the United States: Google, Yahoo!, and Bing, so that 

consumers searching for more information about the settlement are specifically directed to the 

link to the settlement website. 

(v) The Publication Notice will also be provided to the American 

Veterinary Association, the American Board of Veterinary Practitioners, and the American 

College of Veterinary Internal Medicine, which shall have the option of distributing the 

Publication Notice to its veterinarian members. 

 (c) The costs of preparing, printing, publishing, mailing, and otherwise 

disseminating the notice shall be paid in accordance with the applicable provisions of the 

Agreement. 

13. The Court finds that the forms and manner of notice as set forth in paragraph 12 

and approved herein meet the requirements of due process under Fed. R. Civ. P. 23(c) and (e), 

are the best notice practicable under the circumstances, constitute sufficient notice to all persons 

entitled to notice, and satisfy the Constitutional due process requirements of notice. The Court 

approves the Notice Plan in all respects and Orders that notice be given in substantial conformity 

therewith. 

14. The Court appoints Epiq Systems, Inc. (“Epiq”), as the Claims Administrator. 

Responsibilities of the Claims Administrator include the following: (a) disseminating notice to the 

Settlement Class; (b) certifying to the Court that notice was published; (c) certifying the dates that 

notices to the Settlement Class were actually published by each newspaper, periodical, or other 

sources, provide a true copy of each notice in each publication, and provide any other information 

relevant to the publication and mailing of the notice; (d) establishing a website for purposes of 

posting the notice, Settlement Agreement, and related documents; (e) accepting and maintaining 

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documents sent from Settlement Class Members, including claim forms, requests to Opt Out, and 

other documents relating to claims administration; (f) administering claims for the payments 

from the Settlement Fund to Settlement Class Members, in accordance with the terms of the 

Settlement Agreement; and (g) all other responsibilities designated to the Claims Administrator 

in the Agreement. 

Ability of Settlement Class Members to Opt Out of Settlement Agreement 

15. Any Member of the Settlement Class who wishes to be excluded from the 

Settlement Class shall mail or shall have his or her counsel mail a written request to Opt Out to 

the Claims Administrator, to be received on or before February 10, 2015 (the “Opt-Out 

Deadline”), and shall clearly state the following: the name, address, telephone number, and 

signature of the individual or entity that wishes to be excluded from the Settlement Class. 

16. Settlement Class Members who submit valid, timely, and complete requests to 

Opt Out shall not be bound by the Settlement Agreement or the Final Order and Judgment. 

17. The initial determination that each request to Opt Out by a Settlement Class 

Member complies with the Opt Out procedures in the Agreement will be made by the Claims 

Administrator and is subject to final approval by the Court, as part of the Final Approval of the 

Agreement. The Court may disallow any request for exclusion that fails to comply with the 

provisions of this Preliminary Approval Order or the Opt Out procedures otherwise approved by 

the Court. 

18. Any Member of the Settlement Class who does not timely mail a valid request to 

Opt Out as set forth in paragraph 15 above shall be automatically included in the Settlement 

Class, and if the Settlement is approved, shall be bound by all the terms and provisions of the 

Agreement, including but not limited to the releases, waivers, and covenants not to sue described 

therein, whether or not such Member of the Settlement Class shall have objected to the Settlement 

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and whether or not such Member of the Settlement Class makes a claim upon or participates in 

the Settlement Fund. 

Submission of Claims 

19. Settlement Class Members who wish to receive reimbursement under the 

Agreement must accurately and timely submit a Claim Form to the Claims Administrator in 

accordance to the instructions set forth therein. All Claim Forms by Settlement Class Members 

must be initially submitted to the Claims Administrator on or before April 1, 2015 (within onehundred ten (110) days after the Notice Date (“Claims Deadline”)). Any claims submitted to the 

Claims Administrator thereafter shall be forever barred. However, the Claims Administrator 

may, in its discretion, permit a Settlement Class Member who makes a timely Claim to remedy 

deficiencies in such Settlement Class Member’s Claim Form or related documentation. Any 

Settlement Class Member who does not submit a Claim Form within the time provided shall be 

barred from sharing in the distribution of the proceeds of the Settlement Fund, but shall 

nevertheless be bound by any final judgment entered by the Court. On or before April 24, 2014, 

the Claims Administrator shall certify to the Court the total number of claims received and 

amounts claimed, and shall provide such other updates to the Court regarding claims submissions 

as the Court may request in connection with Final Approval. 

Other Provisions 

20. All proceedings in the Actions, except any matters necessary to implement, 

advance, or further the Agreement or settlement process, are hereby stayed and suspended until 

further order of this Court. 

21. No discovery with regard to the Settlement or Agreement shall be permitted as to 

any of the Parties to the Agreement other than as may be directed by the Court upon a proper 

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showing by the party seeking such discovery by motion properly noticed and served in 

accordance with the applicable rules of this Court. 

22. This Order bars and enjoins all Settlement Class Members from commencing or 

prosecuting any action asserting any Released Claims, and stays any actions or proceedings 

brought by any Member of the Settlement Class asserting any Released Claims as of three (3) 

days after the date of this Order. 

23. Pending Final Approval, no Settlement Class Member, either directly, 

representatively, or in any other capacity, shall file or shall have his or her counsel file, 

commence, prosecute or continue against any or all of the Released Entities, any action or 

proceeding in any court or tribunal asserting any of the matters, claims or causes of action that 

are to be released in the event of Final Approval pursuant to the Agreement, and are hereby 

enjoined from so proceeding. In the event of Final Approval, all Settlement Class Members 

except those persons found by this Court to have validly excluded themselves from the 

Settlement shall be forever enjoined and barred from: 

(a) 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; 

(b) Instituting, continuing, maintaining, organizing class members in, or 

joining with class members in, intervening in, or receiving any benefits from 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 

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Released Entity for contribution or indemnity, based on, involving, or incorporating, directly or 

indirectly, any or all Released Claims; 

(c) 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; and 

(d) Filing, commencing, prosecuting, continuing, maintaining, intervening in, 

participating in (as class representatives, members or otherwise), or receiving any benefits from 

any lawsuit, arbitration, administrative or regulatory proceeding or order in any jurisdiction 

based upon or related to any Released Claim against any person or entity who is, has been, could 

have been, or could be alleged to be a joint-tortfeasor, co-tortfeasor, co-conspirator, or co-obligor 

with any Released entity based upon or related to any Released Claim. 

24. Any information received by the Claims Administrator in connection with this 

Settlement that pertains to a particular Member of the Settlement Class shall be confidential and 

shall not be disclosed by the Claims Administrator to any other Settlement Class Member or 

their counsel. 

25. In the event of Final Approval, each and every term and provision of the 

Agreement (except as modified by the Final Approval Order) shall be deemed incorporated into 

the Final Order and Judgment as if expressly set forth and shall have the full force and effect of 

an Order of the Court. 

26. In the event the Settlement is terminated in accordance with the provisions of the 

Agreement, the Settlement and all proceedings had in connection therewith, including the 

certification of the Settlement Class and appointment of class representatives for settlement 

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purposes only, shall be null and void, except insofar as expressly provided in the Agreement, and 

without prejudice to the status quo ante rights of Parties and Released Entities. Neither this Order 

nor the Agreement, nor any negotiations, statements, communications or proceedings in 

connection therewith, shall be offered or received as, construed as, or be deemed to constitute 

any evidence of, an admission or concession by any Released Entity of any liability or 

wrongdoing by them, or that the claims and defenses that have been asserted in the Actions. The 

certification of the Settlement Class shall not be treated as the adjudication of any fact or issue 

for any purpose other than this Agreement and shall not be considered as law of the case, res 

judicata, or collateral estoppel in any other proceeding. Until and unless the Agreement reaches 

the Effective Date, the certification of the Settlement Class shall not be treated as the 

adjudication of any fact or issue and shall not be considered as law of the case, res judicata, or 

collateral estoppel in this proceeding, the certification of the Settlement Class shall not be treated 

as the adjudication of any fact or issue and shall not be considered as law of the case, res 

judicata, or collateral estoppel in this proceeding. 

27. Defendants may communicate with Settlement Class Members regarding the 

provisions of this Agreement, so long as such communications are not inconsistent with Class 

Notice or other agreed upon communications concerning the Agreement. The Released Entities 

may refer Settlement Class Members to the Claims Administrator, the toll free number, and the 

settlement website. Defendants will not discourage the filing of any claims allowed under Section 

II of the Settlement Agreement. Released Entities that have been reimbursing potential Class 

Members may continue to do so if necessary to complete claims and Released Entities also may 

encourage those persons to participate in the Settlement that is the subject of the Agreement. In 

addition, Defendants may continue to communicate with their customers, business contacts, and 

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members of the public in the ordinary course of business without need to submit the 

communication to the Court for approval. 

28. The Court may enter its Order and Judgment approving the Settlement and 

dismissing the Actions on the merits and with prejudice regardless of whether it has approved the 

plan of distribution or awarded attorneys’ fees and expenses. 

29. In accordance with the Agreement, Defendants will transfer or cause to the 

transferred the Settlement Amount into the Escrow Account within ten (10) business days of the 

Court’s entry of this Order. 

30. All funds held by the Escrow Agent shall be deemed and considered to be in 

custodia legis, and shall remain subject to the jurisdiction of the Court, until such time as such 

funds shall be distributed pursuant to the Agreement and/or further order(s) of the Court. 

31. The Court may alter the time or the date of the Final Approval Hearing without 

further notice to the Members of the Settlement Class, provided that the time or the date of the 

Final Approval Hearing shall not be set at a time or date earlier than the time and date set forth in 

Paragraph 6 above, and retains jurisdiction to consider all further applications arising out of or 

connected with the proposed Settlement. The Court may approve the Settlement, with such 

modifications as may be agreed to by the Settling Parties, if appropriate, without further notice to 

the Settlement Class. 

SO ORDERED this 28th day of October, 2014. 

 

The Honorable Robert W. Gettleman 

United States District Judge 

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