You received a Notice because you may have been identified as a potential Settlement Class Member.Top
Plaintiffs allege in the lawsuits that the application of certain pesticides, Storcide II and Actellic 5E, to the Morning Song Bird Food products and the sale of those products violated certain federal or state laws. Plaintiffs sought refunds for their purchases, among other things.
Defendants deny all wrongdoing alleged in the litigation and deny that Plaintiffs have suffered any damages or that they are entitled to full refunds. However, taking into account the costs, burden, and uncertainty inherent in any litigation, Defendants have concluded that it is desirable and beneficial that the Action be fully and finally settled. By agreeing to the proposed Settlement described in the Notice, Defendants make no admission as to the truth of these allegations.
The Court has preliminarily approved this proposed Settlement and will hold a Fairness Hearing to decide whether to finally approve the proposed Settlement.
In a class action, one or more persons called “class representatives” (in this case Laura Cyphert, Milt Cyphert, Ellen Larson, and David Kirby) sue on behalf of other people who have similar claims. Together, the people are called a “class” or “class members.” The individuals who sued are called the “plaintiffs.” The companies or individuals they sued are called the “defendants.” One court resolves the issues for the entire class, except for those people who choose to exclude themselves from the class.Top
You are a member of the Settlement Class if, from November 1, 2005 to May 1, 2008, inclusive, you purchased and have not yet received a full refund for your Morning Song Bird Food purchases. A list of the Morning Song Bird Food products is available here.
Unless you have separately received a document entitled Notice Regarding Retailer-Identified Refunds (the “Retailer-Identified Refund Notice”), you must complete and timely submit the Claim Form and the required accompanying documentation (as described below) to be eligible to receive any payments from the Settlement. If you have received a Retailer-Identified Refund Notice, please see that document for additional information.
As a Settlement Class Member, you will be bound by all proceedings, orders, and judgments entered in connection with the Settlement, including the release, covenant not to sue, and dismissal with prejudice described below.
The proposed Settlement provides for the payment of a Settlement Amount of up to $85,000,000 (“Settlement Amount”). The Settlement Amount, together with interest (“Settlement Fund”), will be used to pay notice and administration costs, Court-approved attorneys’ fees and expenses, Court-approved service awards for class representatives, and certain Settlement Fund taxes and tax expenses (the “Net Settlement Fund”). The Net Settlement Fund will be used to provide eligible Settlement Class Members with one or more of the refunds below. There is no monetary cap on Retailer-Identified Refunds or the Proof of Purchase Refunds. This means that if the total amount needed to pay Retailer-Identified Refunds and Proof of Purchase Refunds is more than the Net Settlement Fund, Scotts will deposit additional money into the Settlement Fund.
Retailer-Identified Refunds: Settlement Class Members who have been identified through records of certain specified retailers (Tractor Supply Company, Sam’s Club, PetSmart, Menard’s, and Orscheln Farm and Home) that contain certain information about purchases of Morning Song Bird Food from November 1, 2005 through May 1, 2008, inclusive, will automatically receive a full refund of their purchases. These Settlement Class Members will receive a Retailer-Identified Refund Notice via mail or email and will be provided the opportunity to update or correct their name and contact information, as well as to submit a Claim Form for additional purchases that are not reflected in the amount of the Retailer-Identified Refund.
Proof of Purchase Refunds: Settlement Class Members who have not been identified through the Retailer Records will receive a full refund of their qualifying purchases of Morning Song Bird Food if they timely submit a valid Claim Form with a sales receipt that shows the quantity of Morning Song Bird Food product purchased, retailer, dates of purchase, and amounts paid from November 1, 2005 through May 1, 2008, inclusive.
Claim Form Refunds: Settlement Class Members who have not been identified through the Retailer Records and who do not or cannot provide a sales receipt of their qualifying purchases of Morning Song Bird Food are eligible to receive up to $100 per Household if they timely submit a valid Claim Form and sign the Claim Form Affidavit section. These funds will be distributed on a pro rata basis, meaning the total amount remaining in the Net Settlement Fund after deducting all Retailer-Identified Refunds and Proof of Purchase Refunds will be distributed based on the total amount of timely and valid Claim Form Refunds.
If, after making all the refund payments described above, any Court-approved award of attorneys’ fees and expenses to Class Counsel, and any Court-approved service award to the class representatives, and any Settlement Fund taxes and tax expenses, more than $22,500,000 (the “Maximum Residual Amount”) remains in the Net Settlement Fund, the following additional and automatic refunds may be made:
Supplemental Claim Form Refunds: Settlement Class Members who timely submit a valid Claim Form and signed Claim Form Affidavit for more than $100 of qualifying purchases of Morning Song Bird Food may receive up to an additional $75 per Household. This refund amount, if applicable, will be distributed on a pro rata basis from the remaining balance, if any, in the Net Settlement Fund after the return of the Maximum Residual Amount, and will not exceed the total purchase amount validly claimed on the Claim Form.
Second Supplemental Claim Form Refunds: Settlement Class Members who timely submit a valid ClaimForm and signed Claim Form Affidavit for more than $175 of qualifying purchases of Morning Song Bird Food and cash their first Claim Form Refund check may receive an additional refund amount. This refund amount, if applicable, will be distributed on a pro rata basis from the remaining balance, if any, in the Net Settlement Fund after the return of the Maximum Residual Amount, and will not exceed the total purchase amount validly claimed on the Claim Form.
If the balance of the Net Settlement Fund – after payment of the Retailer-Identified Refunds, the Proofs of Purchase Refunds, the Claim Form Refunds, any Court-approved award of attorneys’ fees and expenses to Class Counsel, and any Court-approved service award to the class representatives, and any Settlement Fund taxes and tax expenses – is $22,500,000 or less, the balance will be returned to Scotts and no Supplemental Claim Form Refunds or Second Supplemental Claim Form Refunds will be made.
If money remains in the Net Settlement Fund after making Supplemental Claim Form Refunds and Second Supplemental Claim Form Refunds, the balance will be donated to the National Audubon Society, a bird-related charitable organization mutually agreed upon by Class Counsel and Scotts’ Counsel, unless otherwise ordered by the Court.
Unless you received a Retailer-Identified Refund Notice in the mail or by email, you must submit a Claim Form to receive a payment. Be sure to complete the Claim Form in full, include sales receipts or the Claim Form Affidavit, if and as applicable, and submit or mail it postmarked by July 1, 2019.
If you received a Retailer-Identified Refund Notice, you do not need to submit a Claim Form for those purchases. Please see the Retailer-Identified Refund Notice for additional information and instructions.
If you believe the Retailer-Identified Refund Notice you received does not reflect all of your qualifying purchases of Morning Song Bird Food from November 1, 2005 to May 1, 2008, you may submit a Claim Form for additional purchases.Top
If you believe you are eligible for a Proof of Purchase Refund, you must submit a Claim Form and include your Proof of Purchase postmarked by July 1, 2019. Proof of Purchase is an original or copy of a sales receipt that shows the quantity of Morning Song Bird Food you purchased, the retailer your purchase was made from, the date of purchase, and the dollar amount of Morning Song Bird Food you purchased from November 1, 2005 to May 1, 2008, inclusive.Top
If you no longer have your sales receipt but you purchased Morning Song Bird Food products from November 1, 2005 to May 1, 2008, inclusive, you may seek a Claim Form Refund. You must submit a Claim Form and sign the Claim Form Affidavit section postmarked by July 1, 2019. Your Claim Form must be signed in two locations and include all required information (the quantity of Morning Song Bird Food purchased, the likely retailer it was purchased from, the approximate date or dates the purchases were made, and the dollar amount of Morning Song Bird Food purchased). By signing your Claim Form Affidavit, you will be swearing that the information you submit is true and accurate. You also will be authorizing the Settlement Administrator to contact you for more information, if needed, to help evaluate or process your claim.Top
If you already received a refund for your purchases of Morning Song Bird Food from November 1, 2005 to May 1, 2008, inclusive, that reimbursement amount will be deducted from the total amount that may be owed to you as part of the proposed Settlement. If that amount equals or exceeds the total amount you would be entitled to under this Settlement, you will not receive any Settlement refunds.Top
An independent Settlement Administrator that is appointed by the Court will review all Claim Forms submitted to determine whether they are valid, timely, and payable. The Settlement Administrator, which is unrelated to any party in this lawsuit, also will calculate the amounts of the Retailer-Identified Refunds, using the records provided by certain retailers, as described above.
The Settlement Administrator may contact Settlement Class Members for further information to complete or validate their Claim Forms or to notify Settlement Class Members in writing if their Claim Form is rejected as deficient. Settlement Class Members will have thirty (30) days after the Claims Deadline of July 1, 2019, or the date of the deficiency notification sent by the Settlement Administrator, whichever is later, to try to cure any deficiencies in their Claim Forms or to dispute any rejection. The Settlement Administrator will evaluate any additional information or documentation submitted by the Settlement Class Member, consult with Class Counsel and Defendants’ Counsel, and then decide whether the Claim Form should be accepted and/or if the payments of any Proof of Purchase Refund or Claim Form Refund should be adjusted. This decision will be final and binding.
The Court will hold a hearing on June 3, 2019, to decide whether to approve the Settlement. If the Court approves the Settlement, there may be appeals. It is always uncertain when any appeals will be resolved. This process may take more than a year. Please be patient. Consult the Settlement website www.birdfoodsettlement.com for the latest information and updates.
If and when the Settlement is approved and becomes final, Retailer-Identified and Proof of Purchase Refunds will be sent within 90 days of the effective date. Refunds will then be sent to Settlement Class Members entitled to receive Claim Form Refunds, followed by Supplemental Claim Form Refunds (if any) and Second Supplemental Claim Form Refunds (if any).
If you meet the definition of “Settlement Class Member,” you are part of the Settlement Class unless you ask to be excluded from the Settlement (see Question 16). As part of the Settlement Class, you will be bound by the Settlement and Court orders, whether or not you receive a refund or submit a Claim Form. When and if the Settlement is approved, the Court will enter a judgment that will dismiss the litigation with prejudice as to all claims against the Defendants. All Settlement Class Members who do not request to be excluded from the Settlement will be deemed to release Defendants and their current and former employees, affiliates, and insurers (among others, as reflected in the definition of “Released Defendants” in the Settlement Agreement) of any liability for any and all claims of every nature and description whatsoever, whether direct, derivative or brought in any other capacity, whether class or individual, ascertained or unascertained, suspected or unsuspected, asserted or unasserted, accrued or unaccrued, existing or claimed to exist, known and unknown, foreseen or unforeseen, fixed or contingent, liquidated or not liquidated, in law or equity that have been or could have been asserted against any of the Released Defendants, in any court, tribunal, or proceeding (including, but not limited to, any claims arising under federal, state, or common law and any statutory claims), by or on behalf of Releasing Plaintiffs and Settlement Class Members related to, arising from, or based upon, in whole or in part, the manufacture, sale, marketing, business operations, communications, transactions, or any other activity relating to Morning Song Bird Food or the manufacture or sale of wild bird food by any Scotts affiliate or the litigation or defense of this Action. This means that all Settlement Class Members who have not opted out of the proposed Settlement will be forever barred from initiating, asserting and/or prosecuting any such claim against the Released Defendants in any court or any forum. In addition, Settlement Class Members will waive any rights under California Civil Code section 1542 (and similar state laws), which provides:
A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.
Settlement Class Members and the parties may still seek the assistance of the Court to enforce the Settlement Agreement, and the Court will continue to oversee the lawsuit in order to interpret and enforce the Settlement Agreement.
More detail about the claims you will be releasing are described in Section XIII of the Settlement Agreement, which is available at www.birdfoodsettlement.com, or in the public court records on file in this lawsuit. You can also talk to the lawyers listed in Question 21 below for free or you can, of course, talk to your own lawyer at your own expense if you have questions about the released claims or what they mean.
To exclude yourself or “opt out” from the Settlement Class, you must personally sign and submit a written request to opt out, stating “I wish to exclude myself from the Settlement Class in In re Morning Song Bird Food Litigation, Case No. 3:12-cv-01592-JAH-AGS,” to the Settlement Administrator postmarked on or before May 13, 2019 to In re Morning Song Bird Food Litigation, c/o KCC Class Action Services, P.O. Box 404107, Louisville, KY 40233-4107. Your exclusion request must also include: (1) your printed name, address, and telephone number; (2) a statement that you are a Settlement Class Member; and (3) the Morning Song Bird Food you purchased, together with approximate dates, retailers, product type, and purchase price.Top
No. If you exclude yourself, you are telling the Court that you do not want to be part of the Settlement Class in this proposed Settlement. You can get a refund only if you stay in the Settlement Class and either received a Retailer-Identified Refund Notice or timely submit a valid Claim Form, as described above.Top
No. Unless you exclude yourself from the proposed Settlement, you are giving up the right to sue the Released Defendants for the claims that this Settlement resolves. You must exclude yourself from the Settlement Class to start your own lawsuit or be part of any other lawsuit against any of the Released Defendants for the claims this Settlement resolves.
Should you elect to exclude yourself from the Settlement Class, you should understand that Defendants and the other Released Defendants will have the right to assert any and all defenses they may have to any claims that you may seek to assert, including, without limitation, the defense that any such claims are untimely under applicable statutes of limitations or statutes of repose.
If you are a Settlement Class Member and have not submitted a request to exclude yourself from the Settlement Class, you can object to the proposed Settlement if you do not like any part of it. The Court will consider your views.
To object, you must file with the Court a written statement explaining why you believe the Settlement should not be approved by the Court as fair, reasonable, and adequate. Your written statement must also include: (1) your printed name, address, and telephone number; (2) the case name and number; (3) the Morning Song Bird Food product purchases that qualify you as a Settlement Class Member; (4) a detailed explanation of your objection, as well as the specific reasons for each objection; (5) any supporting materials you wish the Court to consider when reviewing your objection; and (6) a statement whether your objection applies only to yourself, a subset of the Settlement Class, or to the entire Settlement Class. Your objection must be mailed to the Clerk of the Court at 333 West Broadway, San Diego, CA 92101, is due by May 13, 2019, and served on the following counsel on or before that same date: Rachel L. Jensen, Robbins Geller Rudman & Dowd LLP, 655 West Broadway, Suite 1900, San Diego, CA 92101; Edward Patrick Swan, Jr., Jones Day, 4655 Executive Drive, Suite 1500, San Diego, CA 92121-3134; and Mark Holscher, Kirkland & Ellis LLP, 333 South Hope Street, Los Angeles, CA 90071.
You are permitted to file your objection yourself or through a lawyer hired at your own expense. Lawyers who file objections on behalf of Settlement Class Members must file an appearance with the Court by May 13, 2019.
Objecting is simply telling the Court that you do not like something about the Settlement. You can object only if you remain a Settlement Class Member (that is, do not exclude yourself). Excluding yourself is telling the Court that you do not want to be part of the Settlement. If you exclude yourself, you cannot object or receive any Refund because the Settlement no longer affects you.Top
The Court has approved of the following law firms to represent the Settlement Class:
Robbins Geller Rudman & Dowd LLP
655 West Broadway, Suite 1900
San Diego, CA 92101
The Driscoll Firm, P.C.
211 N. Broadway, Suite 4050
St. Louis, MO 63102
Dowd & Dowd P.C.
211 N. Broadway, Suite 4050
St. Louis, MO 63102
You do not need to hire your own lawyer because Class Counsel is working on your behalf. If you want your own lawyer, you will have to pay that lawyer. For example, you can ask him or her to appear in Court for you if you want someone other than Class Counsel to speak for you.Top
Class Counsel will apply to the Court for an award of attorneys’ fees of up to 25% of the Settlement Amount and expenses in an amount not to exceed $450,000, plus interest thereon, and Service Awards in an amount not to exceed $10,000 for each of the class representatives for their time and service to the Settlement Class. Any award of attorneys’ fees and expenses and Service Awards must be approved by the Court. If approved, these awards will be paid from the Settlement Fund, and will be paid before Claim Form Refunds are distributed.Top
The Court will hold a Fairness Hearing at 2:30 p.m. on June 3, 2019, before the Honorable John A. Houston at the U.S. District Court for the Southern District of California, Courtroom 13B, 333 West Broadway, San Diego, CA 92101, to decide whether to grant or deny final approval of the proposed Settlement.Top
No. Class Counsel will answer any questions the Court may have about the proposed Settlement. However, you are welcome to come to the hearing at your own expense. If you submitted an objection, you do not have to appear in Court to talk about it. As long as you mailed your written objection on time, signed it, and provided all of the required information (see Question 19) the Court will consider it. You may also pay your own lawyer to attend, but it is not necessary.Top
If you wish to appear at the Fairness Hearing, you must file with the Court a written notice of your intent to appear at the Fairness Hearing by May 13, 2019, that complies with the Court’s Preliminary Approval Order. Any Settlement Class Member who fails to comply with these requirements will forfeit their right to appear and be heard on his or her objection at the Fairness Hearing.Top
When and if the Court approves the Settlement after the Fairness Hearing, it will enter a “Final Order and Judgment” which, among other things, will constitute a final and binding judgment regarding the Action and dismiss the lawsuit with prejudice, order the parties to carry out the terms of the Settlement, and put into effect the Releases described above.Top
If the Court does not approve the Settlement, you will not receive any Refunds described in the Notice and you will not be legally affected by the Settlement, all the parties in this lawsuit will be back to where they were before the Settlement Agreement, and no party may use or refer to the Settlement Agreement to the disadvantage of the other party.Top