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Jubinville v. Hill's Pet Nutrition, Inc.

United States District Court, D. Rhode Island

April 12, 2019

JENNIFER JUBINVILLE, et al., on behalf of themselves and all others similarly situated, Plaintiffs,
v.
HILL'S PET NUTRITION, INC., and HILL'S PET NUTRITION SALES, INC., Defendants.

          MEMORANDUM AND ORDER

          Patricia A. Sullivan, United States Magistrate Judge.

         This case is one of a series of putative class actions[1] arising out of a recall of “prescription” or specialty dog food that allegedly contained toxic and sometimes fatal levels of vitamin D; the recall was announced on January 31, 2019, by the manufacturer/seller of the dog food, Defendants Hill's Pet Nutrition, Inc., and Hill's Pet Nutrition Sales, Inc. (collectively, “Hill's”). On February 15, 2019, Plaintiffs Jennifer Jubinville, Jenna Sprengel, Kelli Coppi and Laura Freeman, individually and on behalf of all others similarly situated (collectively, “Plaintiffs”), filed this case.[2] ECF No. 1. Plaintiffs allege that the consumption of Hill's contaminated products inflicted significant suffering and death on their dogs and caused Plaintiffs to incur economic injury, including veterinary expenses. As of the date of the filing of the Jubinville complaint, the recall involved approximately 675, 000 cases of canned food. Plaintiffs assert that more specialty dog food contaminated with excessive vitamin D was sold by Hill's, beyond what has been recalled so far.

         Prior to the recall, owners whose pets were suffering adverse symptoms after eating any type of Hill's “prescription” pet food initiated contact with Hill's by calling its consumer affairs line to speak to a representative, by emailing or by connecting with Hill's through social media. Consistent with its long-standing practice based on its “100% satisfaction guarantee, ” Hill's interviewed these consumers to get details of any health issues that the consumer linked to a Hill's product and, based on the submission of supporting documentation, offered reimbursement both to the consumer for related veterinary expenses and other costs and directly to the veterinarian for related diagnostic testing. After the recall was announced (and before any law suits had been filed), Hill's continued this practice, while ramping up the times when consumers could call due to the volume triggered by the recall. According to the protocol Hill's adopted based on its prior practice, consumers who initiated contact with Hill's would be offered reimbursement for recalled dog food they had purchased without being required to release any claims; Hill's also represented[3] that it would reimburse consumers for recall-related out-of-pocket veterinary expenses, as well as other costs associated with the recall, in consideration for a release of all claims. And Hill's continued its prior practice of reimbursing veterinarians directly for diagnostic testing of any dog whose owner was concerned that contaminated food might have been consumed.

         In connection with this effort, Hill's developed communication protocols for the non-attorney consumer affairs representatives who fielded consumers' phone calls and a sequence of written communications to be sent to consumers and veterinarians regarding reimbursement. After Hill's became aware that class actions were being filed, its letter to consumers offering reimbursement, in consideration for which Hill's required a release of claims, was edited to clearly advise the consumer that several class actions had been filed (including contact information for class counsel in each) and that the signing of a release would affect the consumer's right to participate in the class; both the letter and the release itself clearly emphasize that the consumer has the right to seek advice of legal counsel before signing.

         Beginning in August 2018, one of the putative class representatives in this case, Jennifer Jubinville, initiated contact with Hill's repeatedly about her dog's health. After the recall was announced on January 31, 2019, Ms. Jubinville flooded Hill's with phone calls, emails and postings on Facebook; after this action was filed two weeks later (on February 15, 2019), she continued posting multiple times on Facebook. Three times Ms. Jubinville was successful in reaching and talking to Hill's non-attorney consumer affairs representatives. After she advised the Hill's representative that she wanted her bills of approximately $8, 000 (primarily for veterinary expenses) to be reviewed for swift reimbursement, Hill's explained to her that it would send and then did (with her consent) send her its form letter and questionnaire detailing the information that it needed to review her claim. In addition, Hill's representatives called Ms. Jubinville twice in response to her inquiries, [4] leaving voicemail messages with its consumer affairs phone number for her to call if she wished.

         Concerned by two responsive voicemails left by a Hill's representative on Ms. Jubinville's phone and by the letter and questionnaire Hill's sent to Ms. Jubinville, on March 4, 2019, a little more than two weeks after the filing of the class action complaint, Plaintiffs filed this emergency motion for a protective order. The motion argues that Hill's communications with Ms. Jubinville, a named putative class representative, are unethical, and that its communications with other putative class members amount to impermissible discovery, are unbalanced and misleading, and seek to adversely affect the status of this litigation. The motion seeks sweeping relief: to bar Hill's from communicating at all with consumers affected by the recall except with a Court-approved script proposed by Plaintiffs; to void any releases consumers have already signed; to cancel authority any consumers had given to allow Hill's to communicate with a veterinarian; and to chide Hill's for what Plaintiffs claim is unethical conduct in violation of Rule 4.2 of the Rhode Island Rules of Professional Conduct[5] in communicating directly with Ms. Jubinville. ECF No. 7.

         Hill's opposes the motion, maintaining that its interactions with consumers have been neither misleading nor coercive. Hill's argues its communications do not warrant such an extreme interference with its right to respond to consumers who contact it or the rights of consumers to speak to its non-attorney representatives, including consumers' rights to seek quick reimbursement without involving (and paying for) an attorney instead of the risky wait for the outcome of a class action that may never be certified and may yield little or nothing. And it aggressively denies that its attorneys acted unethically by communicating with Ms. Jubinville, pointing out that it was entirely appropriate for Hill's' non-attorney representatives to respond as they did to Ms. Jubinville's repeated overtures. ECF No. 14.

         The motion is referred to me for determination pursuant to 28 U.S.C. § 636(b)(1)(A). Based on the Court's review of the substance of Hill's communications so far with absent putative class members, the transcripts of the three calls with Ms. Jubinville and the arguments of counsel at the hearing held on March 18, 2019 (ECF No. 20, “Transcript Mar. 18, 2019”), the Court finds that, overall, Hill's communication strategy appears to be well calibrated to avoid misleading or improperly coercing consumers to sign releases that might pose a serious threat to the fairness of the litigation process. Nevertheless, the Court is troubled that one of the letters (together with the attached questionnaire) Hill's has distributed, read in isolation, might be misleading in effect, ECF No. 14-4 (“Recall Letter” and “Questionnaire”), and orders a limited clarification of the meaning of Hill's deadline for consumers to submit documentation to support a claim for non-litigation reimbursement. Otherwise, the subsequent letter in Hill's sequence of communications, as well as the release itself, is more than adequate to cure any potential misunderstandings. ECF No. 14-6 (“Release Letter” and “Release”). As such, the Court finds that additional judicial interference with such communication treads perilously close to a serious interdiction on protected First Amendment speech.

         As to Hill's' communications with Ms. Jubinville, the Court finds that none were unethical or violative of any Rhode Island Rule of Professional Responsibility. Rather, they were all initiated by Ms. Jubinville, did not involve any attorneys and not only were appropriate but also were empathetically responsive to Ms. Jubinville's understandable anguish over the death of her dog.

         Based on these findings and the analysis that follows, the Court grants Plaintiffs' motion in limited part to require clarification of the thirty-day deadline references in Hill's Recall Letter and the related Questionnaire; the balance of the motion is denied.

         I. BACKGROUND[6]

         A. The Recall and Resulting Litigation

         On January 31, 2019, Hill's announced a voluntary recall of certain cans of dog food sold in late 2018 and early 2019. Kipers Decl. II ¶ 4 & Ex. 1. The specialty dog food subject to the recall had potentially elevated measurements of vitamin D, which can be seriously harmful to dogs. Id. While the recall announcement did not specify the number of cans affected, it provided a list of affected product names and accompanying product codes. Id., Ex. 1 at 3-5. Plaintiffs' complaint alleges Hill's has recalled 675, 000 cases of dog food, which amounts to 13.5 million cans. ECF No. 1 at 16.

         The first recall-related class actions against Hill's were filed on February 11, 2019, in the Eastern District of New York and the Northern District of Florida, less than two weeks after the recall was announced. Bone v. Hill's Pet Nutrition, 19-cv-831-LDH-RML, ECF No. 1; Russell v. Hill's Pet Nutrition, 19-cv-395-MCR-HTC, ECF No. 1. Hill's was first served, with the Bone complaint, on February 13, 2019. Bone v. Hill's Pet Nutrition, 19-cv-831-LDH-RML, ECF No. 10. So far, cases are pending in the Central and Northern Districts of California, the Northern District of Florida, the District of Kansas, the Northern District of Illinois, the Eastern District of New York, the District of Rhode Island and the Eastern District of Tennessee. In this Court, Jubinville was filed on February 15, 2019, and served on March 1, 2019. ECF Nos. 1, 16. Jubinville alleges a nationwide class, with subclasses in Rhode Island, Illinois, New York and Texas, of consumers “who purchased Hill's Prescription Diet and Science Diet dog food with elevated levels of vitamin D.” ECF No. 1 at 15. A motion is currently pending before the Panel on Multidistrict Litigation to consolidate all of the Hill's recall-related class actions in a single transferee court. The Panel will not hear the motion until May 2019. Transcript Mar. 18, 2019, at 70.

         B. Hill's Communications with Consumers

         Hill's publicized the recall with a January 31, 2019, press release posted by the U.S. Food and Drug Administration that urged consumers to contact their veterinarians if their pets showed symptoms of elevated vitamin D. Kipers Decl. II ¶ 5. Immediately following the recall announcement, Hill's was overwhelmed by pet owners who contacted it about the recalled dog food. Id. ¶ 6. In response, Hill's followed its previously-established procedure for processing consumer claims. See id. ¶¶ 6-7, 11, 17. That procedure included refunding or replacing recalled dog food, id. ¶ 7, paying veterinarians[7] for diagnostic testing and paying reimbursement of “medical and other expenses related to Vitamin D hypervitaminosis[, ]” to either the veterinarian or pet owner. Id. ¶ 11. Hill's efforts to gather information about a particular consumer's claim for reimbursement were done in response to contact initiated by consumers who called, emailed, or posted on social media. Id. ¶¶ 17-19. Direct interaction with the consumer was conducted by Hill's consumer affairs representatives, who are not lawyers. Id.

         After an initial contact from a consumer seeking compensation, during days immediately following the recall announcement, Hill's sent its form letter with its standard claims-processing questionnaire - containing no content specifically relating to the recall - to gather information about the consumer's experience and documentation of the consumer's claim. Id. ¶ 21; Wexler Decl. Ex. A. This questionnaire asks, inter alia, about pet medical history and what food the pet ate in the past. Id. at 4-6. The letter clearly states, “[i]f you do not wish Hill's to conduct a review and to evaluate your claim for compensation, please disregard the balance of this letter.” Id. at 2. However, if the consumer does wish to seek compensation directly from Hill's, both the letter and the questionnaire state that Hill's requires the consumer to provide the information needed to evaluate the claim within thirty days from the date of the letter. Id. at 2, 4. Hill's sent 239 of these form letters and questionnaires between January 31 and February 8, 2019. Kipers Decl. II ¶ 21. During the period immediately after the recall and before Hill's was aware of any class actions, Hill's made one offer to settle, which was accepted through the signing of a release.[8]

         1. Recall Letter

         Because it received “additional questions about the recalled food and the reimbursement process, ” Hill's developed the Recall Letter to explain more clearly its claims process. Kipers Decl. II ¶ 23. The Recall Letter consists of a recall-specific cover letter and a Questionnaire that is very similar to the standard questionnaire.[9] The record does not clearly indicate the first day the Recall Letter was sent, but Hill's began mailing it out to consumers who had initiated contact to seek reimbursement no later than February 21, 2019, after Hill's was aware of at least one of the class actions. Id. As of March 14, 2019, Hill's estimated it had distributed 2, 635 copies of the Recall Letter. Id.

         The Recall Letter opens by directly addressing the recall, stating Hill's is “sorry to hear that your pet may have been affected by the consumption of our recalled food.” Recall Letter at 2. It states that it is being sent for the purpose of “explain[ing] our process to seek reimbursement for costs related to your pet's consumption of recalled food.” Id. The Recall Letter clearly specifies what Hill's is prepared to offer:

Hill's will reimburse you on a case-by-case basis for office visit costs, diagnostic testing, necessary treatments, and expenses that can be traced to a recalled Hill's food purchased between September 1, 2018 and January 31, 2019 in exchange for a release from you that says you will not sue or otherwise pursue an action against Hill's.

Id. at 3. In order for Hill's to evaluate the consumer's claim for reimbursement, the Recall Letter explains that the consumer should supply it with the following: a copy of the pet's medical records; copies of veterinarian bills and documentation of other expenses, if applicable; and proof of purchase of the recalled food. Id. at 2, 4-6. For the same reason, the Recall Letter asks the pet owner to “giv[e] [Hill's] permission to contact [the] pet's ...


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