In Re Pet Food Products Liability Litigation

PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

Nos. 08-4741 & 08-4779

IN RE: PET FOOD PRODUCTS LIABILITY LITIGATION

Jim W. Johnson and Dustin Turner,
Appellants at 08-4741

Margaret Picus and Daniel Kaffer,
Appellants at 08-4779

On Appeal from the United States District Court
for the District of New Jersey
D.C. Civil Action No. 07-cv-2867
(Honorable Noel L. Hillman)

Argued February 22, 2010
Before: SCIRICA, CHAGARES and WEIS, Circuit Judges.

(Filed December 16, 2010)
D. J. POWERS, ESQUIRE (ARGUED)
301 Park Lane
Austin, Texas 78704

ROBERT E. MARGULIES, ESQUIRE
Margulies Wind
Harborside Plaza 10
3 Second Street, Suite 1201
Jersey City, New Jersey 07311

JEFFREY L. WEINSTEIN, ESQUIRE
518 East Tyler Street
Athens, Texas 75751
Attorneys for Appellants,
Jim W. Johnson and Dustin Turner

KYLE R. NORDREHAUG, ESQUIRE (ARGUED)
Blumenthal & Nordrehaug
2255 Calle Clara
La Jolla, California 92037

DANIEL I. WARD, ESQUIRE
118 White Horse Road West
Voorhees, New Jersey 08043
Attorneys for Appellants,
Margaret Picus and Daniel Kaffer

2
KENNETH A. WEXLER, ESQUIRE (ARGUED)
Wexler Wallace
55 West Monroe Street
Chicago, Illinois 60603

JENIPHR BRECKENRIDGE, ESQUIRE
Hagens Berman Sobol Shapiro
1918 Eighth Avenue, Suite 3300
Seattle, Washington 98101

STUART A. DAVIDSON, ESQUIRE
Robbins Geller Rudman & Dowd
120 East Palmetto Park Road, Suite 500
Boca Raton, Florida 33432

RUSSELL D. PAUL, ESQUIRE
SHERRIE R. SAVETT, ESQUIRE
Berger & Montague
1622 Locust Street
Philadelphia, Pennsylvania 19103

LISA J. RODRIGUEZ, ESQUIRE
Trujillo, Rodriguez & Richards
258 Kings Highway East
Haddonfield, New Jersey 08033

3
MARK J. TAMBLYN, ESQUIRE
Wexler Wallace
455 Capitol Mall, Suite 231
Sacramento, California 95814
Attorneys for Appellees,
Pet Owner Class Plaintiffs

MARY E. GATELY, ESQUIRE (ARGUED)
CRISTEN S. ROSE, ESQUIRE
DLA Piper
500 8th Street, N.W.
Washington, D.C. 20004
Attorneys for Appellee,
Menu Foods Defendants

MARK C. GOODMAN, ESQUIRE
Squire, Sanders & Dempsey
One Maritime Plaza, Suite 300
San Francisco, California 94111

JOSEPH C. WEINSTEIN, ESQUIRE
Squire, Sanders & Dempsey
4900 Key Tower
127 Public Square
Cleveland, Ohio 44114

4
EVAN S. NADEL, ESQUIRE
Greenberg Traurig
153 Townsend Street, 8th Floor
San Francisco, California 94107
Attorneys for Appellees,
PETCO Animal Supplies Stores, Inc.,
PetSmart, Inc., Target Corporation, Wal-Mart Stores, Inc.

D. JEFFREY IRELAND, ESQUIRE
BRIAN D. WRIGHT, ESQUIRE
Faruki, Ireland & Cox
10 North Ludlow Street
500 Courthouse Plaza, S.W.
Dayton, Ohio 45402
Attorneys for Appellee,
The Iams Company

ANTHONY G. BRAZIL, ESQUIRE
Morris, Polich & Purdy
1055 West Seventh Street, 24th Floor
Los Angeles, California 90017
Attorney for Appellee,
ChemNutra, Inc.

5
RICHARD FAMA, ESQUIRE
RUSSELL G. WHEELER, ESQUIRE
Cozen & O'Connor
45 Broadway Atrium, Suite 1600
New York, New York 10006
Attorneys for Appellee,
Del Monte Foods Co.

CRAIG A. HOOVER, ESQUIRE
Hogan Lovells US
Columbia Square
555 Thirteenth Street, N.W.
Washington, D.C. 20009
Attorney for Appellee,
Nestlé Purina PetCare Company

JAMES D. ARDEN, ESQUIRE
Sidley Austin
787 Seventh Avenue
New York, New York 10019

STEVEN A. KARG, ESQUIRE
Norris, McLaughlin & Marcus
721 Route 202-206
P.O. Box 5933
Bridgewater, New Jersey 08807
Attorneys for Appellee,
Hill's Pet Nutrition, Inc.

6
GARY L. JUSTICE, ESQUIRE
GAIL E. LEES, ESQUIRE
LINDSAY R. PENNINGTON, ESQUIRE
WILLIAM E. WEGNER, ESQUIRE
Gibson, Dunn & Crutcher
333 South Grand Avenue
Los Angeles, California 90071

MARK WHITBURN, ESQUIRE
Gibson, Dunn & Crutcher
2100 McKinney Avenue, Suite 1100
Dallas, Texas 75201
Attorneys for Appellee,
Nutro Products, Inc.

GARY A. BRYANT, ESQUIRE
Willcox & Savage
1800 Bank of America Center
One Commercial Place
Norfolk, Virginia 23510
Attorney for Appellee,
Wilbur Ellis Company

THOMAS P. BRACAGLIA, ESQUIRE
Marshall, Dennehey, Warner, Coleman & Goggin
1845 Walnut Street
Philadelphia, Pennsylvania 19103
Attorney for Appellee,
Natural Balance Pet Foods, Inc.

7
 OPINION OF THE COURT

SCIRICA, Circuit Judge.
This is an appeal from the approval of the settlement of
a class action lawsuit stemming from the largest pet food recall
to date. The class action was brought on behalf of consumers in
the United States and Canada who purchased, used or obtained,
or whose pets consumed, wet pet food that was allegedly
contaminated with melamine and cyanuric acid. Plaintiffs
alleged violations of state consumer protection and deceptive
trade practices statutes, as well as state law claims for product
liability, breach of warranty, and negligence. The District Court
certified a settlement-only class and granted approval of a $24
million settlement. Appellants are members of the settlement
class who objected to various aspects of class certification and
the settlement.
We conclude that the class certification requirements of
Federal Rule of Civil Procedure 23(a) and (b) are satisfied with
respect to the settlement class and that the District Court’s
analysis of whether the settlement is fair, reasonable, and
adequate under Federal Rule of Civil Procedure 23(e) was
proper in all respects but one. Accordingly, we will vacate the
court’s order granting final approval of the settlement and
remand for proceedings consistent with this opinion.
I. BACKGROUND AND PROCEDURAL HISTORY
A. The Recall

8
 In March 2007, defendant Menu Foods, an Ontario-based
pet food manufacturer, announced a recall of dozens of brands
of wet pet food after the food was linked to the deaths of several
cats and dogs. The recall involved only wet pet food in cans and
foil pouches manufactured between November 8, 2006, and
March 6, 2007. Shortly thereafter, four other defendant pet food
manufacturers initiated recalls of their pet food and treat
products: Hill’s Pet Nutrition and Nestle Purina Pet Care
Company on March 30, 2007; Del Monte Pet Products on April
2, 2007; and Sunshine Mills, Inc., on April 5, 2007. The recall
expanded through 2007, eventually covering approximately 180
brands of pet food and treats produced by twelve different
manufacturers.
After the recall was initiated, it was discovered that
wheat gluten and rice protein concentrate imported from China
and supplied to multiple pet food manufacturers by defendants
ChemNutra, Inc., and Wilbur Ellis appeared to have been
contaminated. These pet food ingredients were adulterated with
both melamine and cyanuric acid, the combination of which can
lead to acute renal failure in small animals if ingested.1

1
On February 6, 2008, after investigations by the Food and
Drug Administration (“FDA”) and the United States Attorney’s
Office, two Chinese nationals and the businesses they operated
(Xuzhou Anying Biologic Technology Development Co., LTD,
and Suzhou Textiles, Silk, Light Industrial Products, Arts and
Crafts I/E Co., LTD), along with a U.S. company (defendant
ChemNutra, Inc.) and its president and chief executive officer,
were indicted by a federal grand jury. The indictments cited the
defendants’ roles in a scheme to import into the United States

9
Altogether, defendants recalled over 60 million cans and
pouches of pet food products. The recall drew substantial media
attention, as well as FDA review, congressional inquiry, and
United States Attorney investigations.
B. The Class Actions and Consolidation
Pet owners soon commenced over 100 putative class
actions against Menu Foods and other pet food manufacturers,
ingredient suppliers, distributors, repackagers, and retailers.2
Plaintiffs brought claims on behalf of all persons who
purchased, used or obtained, or whose pets consumed, any cat
or dog food or treats that allegedly contained contaminated
wheat gluten and/or rice protein concentrate. Each complaint
alleged violations of state consumer protection and deceptive
trade practices statutes, product liability, breach of warranty, and
negligence.
The cases were consolidated by the Judicial Panel on
Multidistrict Litigation and transferred to the United States

products claimed to be wheat gluten, which were contaminated
with melamine and used to make pet food. U.S. Department of
Health & Human Services, U.S. Food and Drug Administration,
Charges Filed in Contaminated Pet Food Scheme (Feb. 19,
2 0 0 8 ) ,
http://www.fda.gov/ForConsumers/ConsumerUpdates/ucm04
8139.htm (last visited Dec. 14, 2010).
2
A complete list of defendants in this case can be found on
the Pet Food Products Liability Settlement website, at
www.petfoodsettlement.com.

10
District Court for the District of New Jersey. In re Pet Food
Prods. Liab. Litig., 499 F. Supp. 2d 1346 (J.P.M.L. 2007).
Counsel then engaged in motion practice involving notice to
potential class members, negotiated to preserve evidence, and
consulted with and deposed experts regarding the contaminated
pet food. In early September 2007, the parties commenced
settlement negotiations, both independently and with a mediator.
On September 26, 2007, the court stayed the litigation to
facilitate formal mediation. Settlement negotiations continued
for seven months, involving cross-country and cross-border
negotiations between the parties, including Canadian plaintiffs
and their counsel. There were more than ten days of formal
mediation and many additional hours of in-person and
telephonic negotiations with representatives of plaintiffs and
over twenty defendants.
C. The Proposed Settlement
The proposed settlement agreement reached by the
parties provides for a $24 million cash fund.3 The settlement
class includes “all persons and entities who purchased, used or
obtained, or whose pets used or consumed Recalled Pet Foods
Product(s).” “Recalled Pet Foods Products” is defined as any

3
The settlement defines “Settlement Fund” as “a fund of
$24,000,000.00 (USD) funded by the Defendants as full
compensation for all Released Claims, the costs of claims
notice, administration, attorneys fees, costs, and expenses
associated with this Settlement in both Canada and the United
States. The Settlement Fund is in addition to the Historic
Payments [defined below].”

11
pet food product that was recalled on or after March 16, 2007,
“because of allegedly contaminated wheat gluten and/or rice
protein concentrate.” The settlement provides recovery for class
members of up to 100% of reasonable economic damages
incurred. Reasonable economic damages supported by
documentation will be paid in full, so long as all accepted claims
do not exceed the available funds; if the total claims exceed the
fund, distribution will be made on a pro rata basis.4 In addition
to or in lieu of payment for documented claims, class members
may receive up to $900 for reasonable claims submitted without
documentation.5
The settlement describes several, non-exclusive
categories of economic damages that may be reimbursed,
including Healthy Screening Claims,6 Injury Claims,7 Deceased

4
Acceptable forms of documentation include veterinarian
bills, veterinary records, statements from veterinarians, copies
of product labels, cancelled checks, receipts, credit card receipts,
and credit card statements.
5
If a class member fails to submit documentation, the Claims
Administrator will evaluate the information provided and make
a reasonable and good faith determination of the validity of the
claim. All class members must sign a verification, under penalty
of perjury, that the information submitted to the Claims
Administrator is true and correct.
6
“Healthy Screening Claims” are “claims for the costs
incurred by a Settlement Class Member whose animal(s) used or
consumed a Recalled Pet Food Product and who took his/her

12
Animal Claims,8 Consumer Food Purchase Claims (“Purchase

animal(s) to a veterinarian for screening or testing because of
the use or consumption of a Recalled Pet Food Product and the
screening or testing proved negative.”
7
“Injury Claims” are “claims for damages allegedly incurred
by Settlement Class Members whose pets used or consumed any
Recalled Pet Food Product and were treated for symptoms or
injuries of acute renal or kidney failure . . . related to the use or
consumption of a Recalled Pet Food Product, but which pets did
not die.” Class members with valid Injury Claims may receive
a full or pro rata reimbursement of veterinary bills incurred after
November 8, 2006, for all diagnostics and treatments stemming
from a pet’s consumption of recalled pet food.
8
“Deceased Animal Claims” are “claims for damages by
Settlement Class Members whose pets used or consumed a
Recalled Pet Food Product and allegedly died as a result of acute
kidney or renal failure . . . or as a result of treatment for acute
kidney or renal failure . . . .” Class members with valid
Deceased Animal Claims may receive reimbursement for
veterinary bills, necropsy, euthanasia, cremation, or
burial/specialty services that occurred after November 8, 2006.
These claimants may also receive reimbursement for either the
cost or fair market value of the deceased pet, whichever is
higher, or if the class member purchased a new pet before May
22, 2008, the reasonable cost of a new pet.

13
Claims”),9 and claims for other economic damage (e.g., travel
and transportation expenses, property damage – such as damage
to carpets – and lost wages). The settlement caps payments for
Healthy Screening Claims and Purchase Claims, as well as
payments for all types of undocumented claims (which are
capped at $900 per claimant, as described above). Payments for
Healthy Screening Claims are limited to an aggregate maximum
of $400,000 out of the $24 million fund, and payments for
Purchase Claims are limited to an aggregate maximum of
$250,000. To the extent that any of the amounts available to
pay Healthy Screening Claims, Injury Claims, Deceased Animal
Claims, Purchase Claims, or claims for other economic damage
would be exhausted by payment of 100% of the claims made in
that category, distribution to pet owners will be adjusted and
paid on a pro rata basis. Any funds remaining after settlement
administration and payment of all valid claims will be donated
to animal welfare-related organizations in both the United States
and Canada.
The settlement also includes an agreement for the future
testing of pet food ingredients. Defendants that manufactured
the recalled pet food products agreed to continue to administer

9
“Consumer Food Purchase Claims” are “claims solely for
reimbursement of the costs associated with the purchase of a
Recalled Pet Food Product by a Settlement Class Member who
has not been reimbursed for such costs to date, including
through return or exchange of the Recalled Pet Food Products.
Consumer Food Purchase Claims do not include Injury Claims,
Deceased Animal Claims, Healthy Screening Claims, or other
claims for economic damage.”

14
their internal quality assurance programs to regularly test
shipments of raw wheat gluten and rice protein concentrate
imported from China for the presence of melamine and cyanuric
acid until May 30, 2009.
The $24 million cash fund is over and above the
approximately $8 million already paid to pet owners by certain
defendants or their insurers as a result of reimbursement claims
programs (“Historic Payments”). “Historic Payments” are
“those amounts already paid by certain of the Defendants,
Released Entities and/or their insurers in settlement or
reimbursement of claims for certain injury, death or screening
expenses associated with a pet’s consumption of Recalled Pet
Food Products.”
The settlement includes a release of claims. Class
members agreed to release:
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 . . . 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, representa tions, omissions,
circumstances or other matters referenced in any
claim raised (including, but not limited to, any

15
 claim that was raised against any Released Entity)
in the Pet Food Recall Litigation.
In addition, the settlement provides for attorneys’ fees.
It allows plaintiffs’ lead counsel to apply to the court for
reimbursement of attorneys’ fees in a total amount not to exceed
25% of the settlement fund ($6 million), plus reimbursement of
expenses incurred in the course of the litigation. Similarly,
counsel for Canadian plaintiffs are permitted to apply to the
Canadian Courts for attorneys’ fees in a total amount not to
exceed 6% of the settlement fund ($1.44 million), plus
reimbursement of expenses. Any award of attorneys’ fees and
litigation expenses is to be paid out of the settlement fund.
The settlement included an opt-out provision; class
members could opt out within 60 days from the date notice of
the settlement was disseminated. Class members who chose to
make a claim for benefits were given 160 days from the date of
notice to file their claim forms.
Under the settlement’s claims process, the Claims
Administrator reviews the claim form, any accompanying
documentation, and any explanations for damages that are not
supported by documentation. After evaluation, the Claims
Administrator determines any amounts to be paid. The Claims
Administrator has authority to contact the claimant and the
claimant’s veterinarian to confirm information provided in the
claim form and to seek additional information, if necessary. The
Claims Administrator may deny a claim based on fraud, bad
faith, unreasonable conduct or demand, or intentional or willful
misconduct by a class member. The Claims Administrator has
complete and final authority to determine the amount to be paid

16
on each claim and its decision is final, binding, and not subject
to appeal.
D. Procedural History
On May 22, 2008, the settling parties filed a joint motion
for preliminary certification of the settlement class, preliminary
approval of the class action settlement, and approval of the
proposed form of notice. A hearing on the motion was held on
the same day. On May 30, 2008, the District Court entered an
order preliminarily approving the proposed settlement class and
the settlement. The court found that the “proposed settlement is
fair, reasonable and adequate and 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.”
The Order also approved the plan for publishing class
notice. Notice was published extensively in newspapers,
magazines, and other periodicals throughout the United States
and Canada.10 In addition, a toll-free number and a settlement
website were established, through which class members could

10
As part of the media campaign, summary publications were
published in consumer magazines (Parade, AARP, and People);
pet magazines (Dog Fancy, Cat Fancy, AKC Family Dog, Bark,
Best Friends, and Dog World); U.S. Veterinary Publications
(DVM Magazine, Journal of the American Veterinary Medical
Association, Trends Magazine, Veterinary Forum, Veterinary
Medicine, Veterinary Practice News); the Canadian Veterinary
Journal; and newspapers in major metropolitan areas (15 U.S.
newspapers, including the New York Times and USA Today,
and 15 Canadian newspapers).

17
obtain additional information and copies of settlement
documents, including claim forms and a list of all recalled pet
food products. As of September 30, 2008, a total of 28,955
notices were sent by direct mail to potential class members who
had submitted claims or were paid as part of the Historic
Payment programs. Notice also was sent to the American
Veterinarian Medical Association and the Canadian Veterinary
Medical Association for further dissemination to their members
and veterinarians.
On September 2, 2008, Jim Johnson and Dustin Turner
filed objections to the proposed settlement. On September 12,
Margaret Picus and Daniel Kaffer filed objections, a motion to
intervene, and a request for limited discovery. On October 3,
plaintiffs and defendants filed a motion for final approval and an
opposition to the motion to intervene. On October 14, the court
held a fairness hearing and heard argument on the motion to
approve the settlement, the motion to intervene, and co-lead
plaintiffs’ counsels’ motion for attorneys’ fees.11 The court

11
As of the date of the fairness hearing, approximately 10,000
claims had been submitted. The average claim was
approximately $1,430, before review by the Claims
Administrator. Out of the 10,000 claims, approximately 6,000
included a Purchase Claim. The average Purchase Claim was
approximately $75, again before review by the Claims
Administrator. The claims period closed on November 24,
2008, approximately six weeks after the date of the fairness
hearing. At our direction, the settling parties provided us with
updated claims information after oral argument. According to
the Claims Administrator, as of February 23, 2010, 24,344

18
heard oral argument from all parties who requested the
opportunity to speak, including objectors.
In an order entered on November 17, 2008, and an
accompanying 65-page opinion filed the following day, the
court certified plaintiffs’ class for settlement purposes under
Rule 23(a) and (b)(3), granted the motion for approval of
settlement under Rule 23(e), granted plaintiffs’ motion for
attorneys’ fees, denied the motion to intervene, and overruled
the various objections to the settlement. In re Pet Food Prods.

timely claims were submitted, and 20,550 were deemed payable.
See Letter from Edward J. Sincavage, CPA, Heffler, Radetich &
Saitta LLP, to counsel for plaintiffs and defendants (Mar. 8,
2010) (on file with the Clerk’s Office). The average claim is
approximately $1,283.00, for an estimated payable amount of
$26,365,575.41. Id. Out of the 20,550 payable claims, 11,306
included a Purchase Claim. Id. The average Purchase Claim is
approximately $52.84, for an estimated payable amount of
$597,427.05. See id. Because the settlement caps Purchase
Claims at $250,000, class members will receive a 41.85%
recovery on Purchase Claims. Id. After deducting the amount
of timely payable Purchase Claims of $597,427.05 from the
amount of timely payable claims of $26,365,575.41, the Claims
Administrator estimates that claims for economic losses other
than Purchase Claims will be $25,768,148.36. The Claims
Administrator estimates that payments for these claims will be
approximately 49% of the payable amounts (due to deductions
from the settlement fund for attorneys’ fees, expenses, notice
costs, settlement administration costs, and the $250,000
allocation for Purchase Claims). Id.

19
Liab. Litig., MDL No. 1850, 2008 WL 4937632 (D.N.J. Nov.
18, 2008) (“Fairness Opinion”). On November 19, 2008, the
court entered judgment, dismissing the case with prejudice.
The Johnson/Turner objectors and the Picus/Kaffer objectors
filed timely notices of appeal.12
Objectors challenge both the class certification and the
approval of the settlement. Objectors assert an intra-class
conflict between class members whose damages are limited to
Purchase Claims13 and those who assert claims for other
economic damages for pets that became ill or died post
consumption. Additionally, the Johnson/Turner objectors
contend differences in state laws create conflicts between class
members. Objectors contend both alleged conflicts preclude a
finding of adequate representation and necessitate the creation
of subclasses. With regard to fairness, both objectors challenge
the $250,000 allocation for Purchase Claims. Finally, the
Picus/Kaffer objectors challenge the denial of their motion for
leave to intervene and motion for discovery, and the approval of
the release.
“We review the decision of the District Court to certify

12
The District Court had jurisdiction over the class action
under 28 U.S.C. § 1332(d)(2)(A). We have jurisdiction under
28 U.S.C. § 1291.
13
As noted, Purchase Claims are “claims solely for
reimbursement of the costs associated with the purchase of a
Recalled Pet Food Product by a Settlement Class Member who
has not been reimbursed for such costs to date, including
through return or exchange of the Recalled Pet Food Products.”

20
[a] class and approve [a] settlement under an abuse of discretion
standard.” In re Warfarin Sodium Antitrust Litig., 391 F.3d 516,
527 (3d Cir. 2004). “An abuse of discretion may be found
where the district court’s decision rests upon a clearly erroneous
finding of fact, an errant conclusion of law or an improper
application of law to fact.” Id. (internal quotation marks
omitted).
II. CLASS CERTIFICATION
In order to approve a class settlement agreement, a
district court first must determine that the requirements for class
certification under Rule 23(a) and (b) are met.14 The Supreme

14
The four threshold requirements of Rule 23(a) are (1)
numerosity (a “class [so large] that joinder of all members is
impracticable”); (2) commonality (“questions of law or fact
common to the class”); (3) typicality (named parties’ claims or
defenses “are typical . . . of the class”); and (4) adequacy of
representation (representatives “will fairly and adequately
protect the interests of the class”). Fed. R. Civ. P. 23(a);
Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 613 (1997). In
addition to the threshold requirements of Rule 23(a), parties
seeking class certification must show that the action is
maintainable under Rule 23(b)(1), (2), or (3). Rule 23(b)(3), the
provision at issue in this case, provides for so-called “opt-out”
class actions suits. See Amchem, 521 U.S. at 615. Under Rule
23(b)(3), two additional requirements must be met in order for
a class to be certified: (1) common questions must
“predominate over any questions affecting only individual
members” (the “predominance requirement”); and (2) class

21
Court has made clear that “[s]ettlement is relevant to a class
certification.” Amchem Prods., Inc. v. Windsor, 521 U.S. 591,
619 (1997). Consequently, a district court “may take the
proposed settlement into consideration when examining the
question of certification.” In re Prudential Ins. Co., 148 F.3d
283, 308 (3d Cir. 1998). In Amchem, the Supreme Court
explained:
Confronted with a request for settlement-only
class certification, a district court need not inquire
whether the case, if tried, would present
intractable management problems, for the
proposal is that there be no trial. But other
specifications of [Rule 23]—those designed to
protect absentees by blocking unwarranted or
overbroad class definitions—demand undiluted,
even heightened, attention in the settlement
context. Such attention is of vital importance, for
a court asked to certify a settlement class will lack
the opportunity, present when a case is litigated,
to adjust the class, informed by the proceedings as
they unfold.

Amchem, 521 U.S. at 620 (citations omitted). In Prudential, we
noted Amchem’s particular emphasis on the Rule 23(a)(4)
requirement that “‘the representative parties will fairly and

resolution must be “superior to other available methods for the
fair and efficient adjudication of the controversy” (the
“superiority requirement”). Fed. R. Civ. P. 23(b)(3).

22
adequately protect the interests of the class.’” Prudential, 148
F.3d at 308 (quoting Fed. R. Civ. P. 23(a)(4)). “Indeed, the key
to Amchem appears to be the careful inquiry into adequacy of
representation.” Id.; see Amchem, 521 U.S. at 621
(“Subdivisions (a) and (b) [of Rule 23] focus court attention on
whether a proposed class has sufficient unity so that absent class
members can fairly be bound by decisions of class
representatives. That dominant concern persists when
settlement, rather than trial, is proposed.”).
A. The District Court’s Opinion
The District Court determined that the settlement class
should be certified for settlement purposes after concluding that
the Rule 23 requirements were satisfied. The court found that
the class, which includes “thousands of consumers that are
geographically dispersed throughout the United States and
Canada,” met Rule 23(a)(1)’s numerosity requirement because
“a class of this size makes joinder of all members
impracticable.” Fairness Opinion, 2008 WL 4937632, at *4.
Second, the court found that Rule 23(a)(2)’s commonality prong
was satisfied based on its finding that eight questions of law and
fact were common to the class, including “[w]hether defendants
intentionally, recklessly or negligently authorized injurious pet
food to enter the market.” Id. at *5. Third, the court determined
the class met Rule 23(a)(3)’s typicality requirement because
“the claims of the class representatives are aligned with those of
the class members since the claims of the representatives arise
out of the same conduct and core facts surrounding the Recall.”
Id. Fourth, the court determined the dual components of the
adequacy of representation requirement of Rule 23(a)(4) were
satisfied because (1) the named plaintiffs’ interests were

23
“directly aligned with those of other members of the Class” as
“the representative plaintiffs were damaged as a result of
defendants’ allegedly unlawful conduct, and the plaintiffs would
have had to prove the same wrongdoing as the absent Class
members to establish defendants’ liability;” and (2) “plaintiffs
have retained attorneys who are highly qualified, experienced
and able to conduct this litigation.” Id. at *6.
The District Court also concluded that the standards of
Rule 23(b)(3) were met, finding the predominance requirement
was satisfied because the “same set of core operative facts and
theory of proximate cause apply to each member of the class.”
Id. The class actions concern consumers who purchased, used,
or obtained recalled pet food products, and if “plaintiffs and
potential class members were to bring individual actions, they
would each be required to prove the same wrongdoing by
defendants in order to establish liability.” Id. The superiority
requirement was satisfied because “absent class certification, the
Court may be faced with litigating over 100 individual lawsuits
all of which would arise out of the same set of operative facts”
and “the resolution of common issues alleged in one action will
result in more efficient use of judicial resources and bring about
a single outcome.” Id.
No one has challenged the District Court’s findings that
the proposed class satisfied the numerosity, commonality,
typicality, predominance, and superiority requirements, and we
believe these findings were well within the court’s sound
discretion. Objectors argued below that the class does not
satisfy the Rule 23(a) requirement of adequacy of representation
because of intra-class conflicts of interest. The District Court
noted the objection to the settlement “on the ground that

24
[objectors’] interests as ‘mere purchasers,’ [were] not adequately
represented by the Class representatives,” but rejected their
argument because both groups shared the common interest of
maximizing recovery for Purchase Claims:
The Class representatives in this case were
purchasers of pet food whose pets consumed the
contaminated pet food. Co-lead counsel asserts
that they were designated to represent the entire
Settlement Class, including “mere purchasers.”
The Court does not find any conflict between the
interests of the Proposed Intervenors and the
Class representatives who purchased the Recalled
Pet Food Products, as their interests in
maximizing recovery of such damages for the
purchase of such products are aligned with the
interests of “mere purchasers” in maximizing
recovery for such product purchase claims.
Id. at *8.
After reviewing objectors’ arguments, and for the reasons
we discuss, we hold that the District Court exercised sound
discretion in certifying the settlement class.
B. Challenges to Adequacy of Representation
A class may not be certified unless the representative
class members “will fairly and adequately protect the interests
of the class.” Fed. R. Civ. P. 23(a)(4). Rule 23(a)’s adequacy
of representation requirement “serves to uncover conflicts of
interest between named parties and the class they seek to

25
represent.” Amchem, 521 U.S. at 625.15 Class representatives
“must be part of the class and possess the same interest and
suffer the same injury as the class members.” Id. at 625-26
(citation and internal quotation marks omitted).
“When appropriate, a class action may be divided into
subclasses that are each treated as a class under [Rule 23].” Fed.
R. Civ. P. 23(c)(5). Subclasses are appropriate “‘[w]here a class
is found to include subclasses divergent in interest.’” In re Ins.
Brokerage Antitrust Litig., 579 F.3d 241, 271 (3d Cir. 2009)
(quoting Fed. R. Civ. P. 23(c) advisory committee’s note); see
also Ortiz v. Fibreboard Corp., 527 U.S. 815, 856 (1999)
(explaining that Amchem requires “a class divided between
holders of present and future claims” to be “divi[ded] into
homogeneous subclasses . . . with separate representation to
eliminate conflicting interests of counsel”). Accordingly, we
have held that “[a] district court hearing a class action has the
discretion to divide the class into subclasses and certify each
subclass separately.” In re Cendant Corp. Sec. Litig., 404 F.3d
173, 202 (3d Cir. 2005). Our standard of review is informed by
the careful balancing of costs and benefits on the part of a
district judge when deciding whether to certify a subclass:
[T]he option to utilize subclasses “is designed to
prevent conflicts of interest in class
representation.” [Cendant Corp., 404 F.3d at
202]. Nonetheless, “[w]hile subclasses can be

15
The other component of the adequacy of representation
inquiry—the qualifications of counsel to represent the class—is
not at issue in this appeal.

26
 useful in preventing conflicts of interest, they
have their drawbacks.” Id. (citing a secondary
source for the proposition that subclassing can
create a “Balkanization” of the class action and
present a huge obstacle to settlement if each
subclass has an incentive to hold out for more
money). Because “the decision whether to certify
a subclass requires a balancing of costs and
benefits that can best be performed by a district
judge,” we accord substantial deference to district
courts with respect to their resolution of this issue.
Id.; see Alexander v. Gino’s, Inc., 621 F.2d 71, 75
(3d Cir. 1980) (noting that “the district court has
considerable discretion in utilizing subclasses”
under Rule 23(c)). Thus, “[w]here the district
court has declined to certify a subclass, we will
ordinarily defer to its decision unless it
constituted an abuse of discretion.” [Cendant
Corp., 404 F.3d at 202].
Ins. Brokerage, 579 F.3d at 271.
Objectors maintain subclasses were necessary for a
number of reasons, none of which lead us to conclude the
District Court abused its discretion in declining to subdivide the
class. First, relying primarily on Amchem,16 objectors contend

16
The proposed class in Amchem encompassed, at minimum,
hundreds of thousands of individuals who were, or may be in the
future, injured by past exposure to asbestos products
manufactured by one of more than 20 defendant companies.

27
subclasses and separate representation were required here
because of conflicts of interest between class members with only
Purchase Claims (of pet food) and class members with Injury
Claims (those who assert claims for pets that became ill or died
after consuming recalled pet food).17 We disagree. All of the
claims covered by the settlement are claims for economic
damages, e.g., for the cost of recalled pet food, the cost of
veterinary treatment, or the cost of a replacement pet.
Furthermore, all class members here have present claims.

Amchem, 521 U.S. at 597. The class representatives in Amchem,
some of whom had diverse medical conditions as a result of
asbestos exposure and some of whom had not yet manifested
any asbestos-related condition, “sought to act on behalf of a
single giant class rather than on behalf of discrete subclasses.”
Id. at 626. The Supreme Court found that in “significant
respects, the interests of those within the single class [were] not
aligned.” Id. “Most saliently, for the currently injured, the
critical goal [was] generous immediate payments. That goal
tug[ged] against the interest of exposure-only plaintiffs in
ensuring an ample, inflation-protected fund for the future.” Id.
Thus, the proposed class could not satisfy Rule 23(a)(4)’s
adequacy of representation requirement. Id. at 625.
17
For ease of reference, throughout our discussion of the
alleged conflict between class members with only Purchase
Claims and class members with claims for other economic
damages, we will use the term “Injury Claim” to mean any claim
for economic damages for pets that became ill or died after
consuming recalled pet food. Class members with Injury Claims
may also have Purchase Claims.

28
 Objectors fault the District Court’s reliance on the fact
that class representatives have both Purchase Claims and Injury
Claims. See Amchem, 521 U.S. at 627.18 But objectors have not
identified adverse interests that would require the establishment
of subclasses. Nor are the other cases cited by objectors—In re
Community Bank of Northern Virginia, 418 F.3d 277 (3d Cir.
2005), and In re General Motors Corp., 55 F.3d 768 (3d Cir.
1995)—apposite.
In Community Bank, we determined that a settlement
class was not properly certified because the district court did not
engage in a proper Rule 23(a) and (b) analysis. Because it was
possible that the class could be properly certified on remand, we
examined some of the relevant factors to be considered,

18
The Court in Amchem noted that when “adversity among
subgroups” requires that subclasses be established, a court
cannot approve a settlement without creating subclasses on the
basis of the consent of the class representatives, who are
members of the distinct groups. 521 U.S. at 627 (quoting In re
Joint Eastern & Southern Dist. Asbestos Litig., 982 F.2d 721,
742-43 (2d Cir. 1992), modified on reh’g sub nom. In re
Findley, 993 F.2d 7 (2nd Cir. 1993)). “The class representatives
may well have thought that the Settlement serves the aggregate
interests of the entire class. But the adversity among subgroups
requires that the members of each subgroup cannot be bound to
a settlement except by consents given by those who understand
that their role is to represent solely the members of their
respective subgroups.” Id. (quoting Joint Eastern & Southern
Dist. Asbestos Litig., 982 F.2d at 742-43).

29
including adequacy of representation. The objectors alleged
many class members had colorable Truth in Lending Act
(“TILA”) and Home Ownership and Equity Protection Act
(“HOEPA”) claims that had not been asserted by class counsel
either in the complaint or during settlement negotiations.
Because it appeared that the named plaintiffs had “no incentive
to maximize such claims for the approximately 14,000 class
members who may [have retained] this valuable cause of
action,” we noted that “[a]t the very least, consideration should
have been given to the feasibility of dividing the class into sub-
classes so that a court examining the proposed settlement could
have judged the fairness of the settlement as it applied to
similarly situated class members.” 418 F.3d at 307.
Objectors contend the class representatives had no
incentive to maximize the Purchase Claims because the value of
the Injury Claims was much greater than the Purchase Claims.
But unlike in Community Bank where the class representatives
did not have TILA or HOEPA claims and the settlement failed
to provide recovery for those claims, here, the class
representatives all have Purchase Claims and the settlement
allocates a portion of the recovery to those claims.
Objectors’ reliance on General Motors is likewise
misplaced. The plaintiffs in General Motors were purchasers of
certain GM trucks that may have had a design defect in the
location of the fuel tank. The class consisted of individual
owners of a single truck as well as “fleet owners,” such as
governmental agencies, who owned a number of trucks. All of
the class representatives were individual owners. Objectors
contended the disparity in settlement benefits enjoyed by the
two different groups created an intra-class conflict that

30
precluded a finding of adequate representation.19 We agreed,
focusing on the terms of the settlement, which evidenced “the
disparity in the prospective value to the different sections of the
class”:
The fleet owners will never enjoy the benefits of
the settlement terms, such as the intra-household
transfer option, intended specifically for the
benefit of individual owners. Thus, we must be
concerned that the individual owners had no
incentive to maximize the recovery of the
government entities; they could skew the terms of
the settlement to their own benefit. Not
surprisingly, the settlement leaves fleet owners
with significantly less value than individual
owners. At the very least, the class should have
been divided into sub-classes so that a court
examining the settlement could consider
settlement impacts that would be uniform at least
within the sub-classes.

19
The settlement provided $1,000 coupons redeemable
toward the purchase of any new GM truck within a 15-month
period. The certificates were transferable with the vehicle, and
could be transferred to a class member’s family member. In lieu
of a $1000 certificate, class members could request that a
nontransferable $500 certificate be issued to any third party
except a GM dealer or its affiliates. The $500 certificate could
only be used on more expensive truck models and was subject
to the same 15-month redemption period as the $1000
certificates. Gen. Motors Corp., 55 F.3d at 780.

31
Gen. Motors Corp., 55 F.3d at 801.
There is no analogous conflict in this case. The remedial
interests of class members with only Purchase Claims are
represented by class representatives with Purchase Claims, and
the settlement provides up to $250,000 for these claims.
Moreover, class members with only Purchase Claims do not
receive less value for identical claims asserted by other class
members.
Objectors contend inadequate representation is
demonstrated in the settlement’s allocation terms, which
designate the vast majority of the fund to Injury Claims, while
Purchase Claims are capped at $250,000.20 But varied relief

20
Objectors’ concerns about the fairness of the settlement,
i.e., that the $250,000 allocated to Purchase Claims is
inadequate, seem to drive much of their argument that there was
inadequate representation in this case. See, e.g., Picus/Kaffer
Br. at 26 (“By settling these claims of this unrepresented
subclass for the grossly inadequate compensation of $250,000
. . . the current Settlement is unfair and inadequate to
unrepresented class members like Appellants.”). We recognize
that in some situations an unfair settlement may be the result of
inadequate representation. And when inadequate representation
leads to an unfair settlement, the analyses of Rule 23(a)’s
adequacy of representation requirement and Rule 23(e)’s
requirement that the proposed settlement be “fair, reasonable
and adequate” will be similar. But in this case, even if the
settlement is found to be unfair on remand, we do not believe
any such finding would be the result of inadequate class

32
among class members with differing claims in class settlements
is not unusual. See Petrovic v. Amoco Oil Corp., 200 F.3d 1140,
1146 (8th Cir. 1999) (“[A]lmost every settlement will involve
different awards for various class members.”); see also
Prudential, 148 F.3d at 289-90 (holding the district court
properly certified a national settlement class in a circumstance
in which the class was comprised of policyholders who
allegedly were the victims of several different types of
fraudulent and misleading sales practices and the settlement
created an alternative dispute resolution mechanism to
determine the kind and amount of relief to be granted).21 Such
differences in settlement value do not, without more,
demonstrate conflicting or antagonistic interests within the class.
See Ins. Brokerage, 579 F.3d at 272.22

representation. For the reasons explained, we do not believe
class members with only Purchase Claims have interests that
diverge from class members with Injury Claims and Purchase
Claims.
21
Cf. Robert G. Bone, Agreeing to Fair Process: The
Problem with Contractarian Theories of Procedural Fairness,
83 B.U. L. Rev. 485, 550 & n.191 (2003) (noting that settlement
value is affected by many different factors, including “severity
of injury, applicable substantive law, risk-preferences, and so
on” and that “wealth transfers [in the sense of settlement value]
are endemic to damage class actions that settle for average
amounts”).
22
Cf. Bone, supra, at 550 (noting that “[i]f a difference in
settlement value were enough by itself to require the creation of

33
 We addressed disparity in allocation in Insurance
Brokerage, holding the district court did not abuse its discretion
by failing to subdivide the class. The objectors argued before
the district court that subclasses were needed to ensure adequate
representation for different types of insurance policyholders and
to ensure a fair allocation of the settlement fund.23 We
acknowledged that there was some appeal to the argument,
“given that the Plan of Allocation divid[ed] the total settlement
award on the basis of the type of insurance, thereby creating
different groups for the purpose of reimbursement, and the
groups [did] not have access to an equal percentage of the fund.”
Id. at 272. But we noted that “subclasses are only necessary
when members of the class have divergent interests,” and the
district court had not found any divergent interests existed
between the allocation groups. Id. We rejected objectors’
argument that the fact that the fund was allocated so that a
greater percentage of the settlement value was designated for
certain class members demonstrated a conflict between groups.

subclasses, the number of subclasses would make many class
actions impossible, and at least in mass tort cases, create another
source of unfairness by leaving some litigants without any
meaningful recovery at all”).
23
Objectors argued subclasses were required for “Excess
Claimants” (policyholders who purchased additional insurance
policies, in excess of their primary insurance coverage, from or
through one of the defendants) and “Non-Excess Claimants”
(policyholders who purchased a primary insurance policy from
or through one of the defendants). Ins. Brokerage, 579 F.3d at
270 n.27.

34
We found that the difference in allocations was “simply a
reflection of the extent of the injury that certain class members
incurred and d[id] not clearly suggest that the class members had
antagonistic interests.” Id. We also found it important that
many class members were members of both policyholder groups
and would be entitled to recover damages for overpayment of
premiums for both types of insurance. “This illustrate[d] that
the Plan of Allocation did not create de facto subclasses among
the class members but merely created a structure for ensuring
that reimbursement [was] tied to the extent of damages incurred
on certain policies of insurance.” Id.
As in Insurance Brokerage, the District Court here did
not find divergent interests between the allocation groups. The
fact that the settlement fund allocates a larger percentage of the
settlement to class members with Injury Claims does not
demonstrate a conflict between groups. Instead, the different
allocations reflect the relative value of the different claims.24
Many class members are members of both allocation groups,
and will be entitled to recover damages for both Purchase
Claims and Injury Claims.
Objectors also point to an alleged disparity in the strength
of the various claims. According to objectors, defendants have

24
At the fairness hearing, the settling parties advised the court
that the average Purchase Claim was approximately $75, while
the average Injury Claim was approximately $1,500. No one
challenges the settling parties’ general representation that a
claim for veterinary care, on average, will be more costly than
a claim for the purchase price of recalled pet food.

35
no defense to the Purchase Claims, so that class members with
Purchase Claims would automatically recover 100% of the value
of the recalled pet food if the case were to proceed through
litigation. They note the settling parties themselves have
characterized the Injury Claims as difficult to prove and fraught
with causation problems.
As with differences in settlement value, alleged
differences in the strength of the various claims asserted in this
class action do not, by themselves, demonstrate conflicting or
antagonistic interests within the class that would require
subclasses. Objectors have not convinced us that “the refund
claims are as strong a claim as is imaginable.” The District
Court made no findings on the merits of the Purchase Claims,
and we are not in a position to do so here. But we are skeptical
of objectors’ theory that because defendants initiated the recall,
class members are automatically legally entitled to a 100%
recovery of the money paid for recalled pet food. As noted,
several defendants initiated voluntary reimbursement programs
immediately after the recall. There may or may not be good
business reasons to implement recalls and reimbursement
programs but these programs do not establish strict liability or
automatically provide for a 100% recovery. The various
authorities objectors cite (e.g., the Consumer Product Safety
Act, 15 U.S.C. §§ 2051–2084) do not support their far-reaching
assertion that “[a] consumer who does not use a recalled product
is entitled to a refund, without any requirement of showing that
the product is defective.” The fact that courts and various
government agencies may order consumer recalls and refunds in
certain circumstances does not mean that class members in this
case—who assert only that defendants initiated a voluntary

36
recall and reimbursement program—have a fool-proof legal
claim against defendants.
Objectors’ assessment of the Purchase Claims, moreover,
fails to take into account class members with undocumented
claims. The settling parties, of course, were aware of the
reimbursement programs and negotiated the settlement
understanding that the vast majority of class members with
documentation for the purchase of recalled pet food would
pursue a remedy through the various reimbursement programs.
The settling parties assumed—correctly, as it turned out—that
the majority of class members asserting Purchase Claims
through the settlement would do so without documentation. See
infra Section III.B. While the settlement provides up to $900 in
recovery for reasonable claims submitted without
documentation, it is not the case that a class member with no
documentation to support the cost of a purchase for a specific
brand of recalled pet food, during a specific time period, has “as
strong a claim as is imaginable.”
But even assuming objectors’ characterization of the
Purchase Claims as “strong” and Injury Claims as “weak”
carries some validity, objectors fail to articulate how differences
in the relative strength of the different claims would lead to
conflicts of interest in class representation. Objectors simply
allege a “substantial conflict” required subclasses in this case.
It appears to us objectors’ focus on the relative strength of the
claims, like their focus on the disparity of the allocation, is more
appropriately addressed as a Rule 23(e) adequacy of allocation
question, rather than a Rule 23(a) adequacy of representation
question.

37
 Objectors also assert a class conflict allegedly resulting
from different factual bases for the various claims. According
to objectors, the Purchase Claims are based on the fact that
defendants recalled the pet food, while the Injury Claims are
based on the fact that the food was contaminated. Whether the
pet food was actually contaminated, they argue, is immaterial
for the Purchase Claims. We disagree. But more importantly,
objectors again fail to explain, and we cannot discern, any
antagonistic interests between class members arising from the
factual underpinnings of the various claims. We believe the
District Court properly determined that all class members have
claims arising out of the sale of potentially contaminated pet
food. That some class members have additional claims arising
out of the use of the recalled food does not create a conflict
between class members.
Finally, the Johnson/Turner objectors assert that
differences in state law create conflicts among class members
that preclude a finding of adequate representation.25 According
to objectors, these differences necessitated creating subclasses
to meet Rule 23(a)’s adequacy of representation requirement.

25
Although normally differences in state law are raised as a
challenge to Rule 23(b)(3)’s predominance requirement, Rule
23(a)(2)’s commonality of law or fact prerequisite, or both, see,
e.g., Warfarin, 391 F.3d at 529, objectors do not argue that
variations in state laws “are so significant so as to defeat
commonality and predominance,” id. Instead, they argue the
differences in state laws “go directly to the adequacy [of
representation] issue.” Here we address adequacy of
representation under Rule 23(a)(4).

38
We disagree and find no merit in objectors’ argument that state
law differences created conflicts among class members that
defeat adequacy of representation and preclude certification of
a nationwide class. Objectors fail to explain how the differences
in state laws have created conflicts of interest between the
named plaintiffs and absent class members in the context of
adequacy of representation in this settlement class. We agree
with the District Court that “the representative plaintiffs’
interests are directly aligned with those of other members of the
Class.” Fairness Opinion, 2008 WL 4937632, at *6. As the
District Court determined, “the representative plaintiffs were
damaged as a result of defendants’ allegedly unlawful conduct,
and the plaintiffs would have had to prove the same wrongdoing
as the absent Class members to establish defendants’ liability.”
Id.
In sum, objectors fail to articulate any conflict or
adversity among class representatives and class members. It is
not enough for objectors to point to differences in claims,
allocation amounts, or state laws without identifying how such
differences demonstrate a conflict of interest. We agree with the
District Court’s finding that the interests of class members with
only Purchase Claims are aligned with the interests of class
members with Injury Claims. The District Court exercised
sound discretion by finding the adequacy of representation
requirement was met, by declining to create subclasses, and by
certifying the settlement class.26

26
The Picus/Kaffer objectors challenge the District Court’s
order denying their motion for leave to intervene to provide
separate representation for class members with only Purchase

39
III. FAIRNESS OF THE PROPOSED SETTLEMENT
“Even if it has satisfied the requirements for certification

Claims. We review the denial of a motion to intervene as of
right under Federal Rule of Civil Procedure 24(a)(2) for an
abuse of discretion. United States v. Alcan Aluminum, 25 F.3d
1174, 1179 (3d Cir. 1994). “However, our review is more
stringent than the abuse of discretion review we apply to a
denial of a motion for permissive intervention. We will reverse
only if we find the district court has applied an improper legal
standard or reached a decision we are confident is incorrect.”
Id. (citations and internal quotation marks omitted).
A class member seeking intervention as a matter of right
under Rule 24(a)(2) must establish “1) a timely application for
leave to intervene, 2) a sufficient interest in the underlying
litigation, 3) a threat that the interest will be impaired or affected
by the disposition of the underlying action, and 4) that the
existing parties to the action do not adequately represent the
prospective intervenor’s interests.” Liberty Mut. Ins. Co. v.
Treesdale, Inc., 419 F.3d 216, 220 (3d Cir. 2005) (citing
Kleissler v. U.S. Forest Serv., 157 F.3d 964, 969 (3d Cir. 1998)).
“To overcome the presumption of adequate representation, the
proposed intervenor must ordinarily demonstrate adversity of
interest, collusion, or nonfeasance on the part of a party to the
suit.” Cmty. Bank, 418 F.3d at 315. As explained above, the
District Court properly determined that absent class members’
interests were adequately represented by plaintiffs.
Accordingly, objectors were not entitled to intervene as a matter
of right.

40
under Rule 23, a class action cannot be settled without the
approval of the court and a determination that the proposed
settlement is fair, reasonable and adequate.” Prudential, 148
F.3d at 316 (internal quotation marks omitted) (citing Gen.
Motors Corp., 55 F.3d at 785); see also Fed. R. Civ. P. 23(e)(2).
Under Rule 23(e), trial judges bear the important responsibility
of protecting absent class members, “which is executed by the
court’s assuring that the settlement represents adequate
compensation for the release of the class claims.” Gen. Motors
Corp., 55 F.3d at 805; see also Ehrheart v. Verizon Wireless,
609 F.3d 590, 593 (3d Cir. 2010) (“The purpose of Rule 23(e)
is to protect the unnamed members of the class.”) (citing
Warfarin, 391 F.3d at 534). We have stressed the importance of
Rule 23(e), noting that “a district court acts as a fiduciary,
guarding the claims and rights of the absent class members.”
Ehrheart, 609 F.3d at 593; accord Warfarin, 391 F.3d at 534;
Gen. Motors Corp., 55 F.3d at 785; see also Amchem, 521 U.S.
at 623 (noting that the Rule 23(e) inquiry “protects unnamed
class members from unjust or unfair settlements affecting their
rights when the representatives become fainthearted before the
action is adjudicated or are able to secure satisfaction of their
individual claims by a compromise” (internal quotation marks
omitted)).
We ask district courts to apply an even more rigorous,
“heightened standard” in cases “where settlement negotiations
precede class certification, and approval for settlement and
certification are sought simultaneously.” Warfarin, 391 F.3d at
534. We have explained that this “heightened standard is
designed to ensure that class counsel has demonstrated sustained
advocacy throughout the course of the proceedings and has

41
protected the interests of all class members.” Prudential, 148
F.3d at 317 (internal quotation marks omitted).
In Girsh v. Jepson, we articulated nine factors to be
considered when determining the fairness of a proposed
settlement:
(1) the complexity, expense and likely duration of
the litigation; (2) the reaction of the class to the
settlement; (3) the stage of the proceedings and
the amount of discovery completed; (4) the risks
of establishing liability; (5) the risks of
establishing damages; (6) the risks of maintaining
the class action through the trial; (7) the ability of
the defendants to withstand a greater judgment;
(8) the range of reasonableness of the settlement
fund in light of the best possible recovery; [and]
(9) the range of reasonableness of the settlement
fund to a possible recovery in light of all the
attendant risks of litigation.
521 F.2d 153, 157 (3d Cir. 1975) (internal quotation marks and
alterations omitted). The settling parties bear the burden of
proving that the Girsh factors weigh in favor of approval of the
settlement. Gen. Motors Corp., 55 F.3d at 785. The district
court’s findings under the Girsh test are factual, and will be
upheld unless they are clearly erroneous. Id. at 786.
In Prudential, we held because of a “sea-change in the
nature of class actions” after Girsh was decided thirty-five years
ago, it may be helpful to expand the Girsh factors to include,
when appropriate, the following non-exclusive factors:

42
 [T]he maturity of the underlying substantive
issues, as measured by experience in adjudicating
individual actions, the development of scientific
knowledge, the extent of discovery on the merits,
and other factors that bear on the ability to assess
the probable outcome of a trial on the merits of
liability and individual damages; the existence
and probable outcome of claims by other classes
and subclasses; the comparison between the
results achieved by the settlement for individual
class or subclass members and the results
achieved—or likely to be achieved—for other
claimants; whether class or subclass members are
accorded the right to opt out of the settlement;
whether any provisions for attorneys’ fees are
reasonable; and whether the procedure for
processing individual claims under the settlement
is fair and reasonable.
148 F.3d at 323.
The district court must make findings as to each of the
nine Girsh factors in order to approve a settlement as fair,
reasonable, and adequate, as required by Rule 23(e). The factors
we identified in Prudential are illustrative of additional inquiries
that in many instances will be useful for a thoroughgoing
analysis of a settlement’s terms.
Because district courts must make findings as to each of
the Girsh factors, and the Prudential factors where appropriate,
the court cannot substitute the parties’ assurances or conclusory
statements for its independent analysis of the settlement terms.

43
Cf. Reynolds v. Beneficial Nat’l Bank, 288 F.3d 277, 283 (7th
Cir. 2002) (cautioning against “paint[ing] with too broad a brush
[and] substituting intuition for . . . evidence and careful
analysis”). When the parties have not supplied the information
needed for the court to determine whether the settlement is fair,
reasonable, and adequate, the court may affirmatively seek out
such information. See id. at 285 (noting that courts may require
the parties to present evidence to enable the court to make
findings regarding the strength of the plaintiffs’ case, the range
of possible damages, and the likely duration of the litigation if
not presently settled).
We reaffirm the “overriding public interest in settling
class action litigation.” Warfarin, 391 F.3d at 535; see also
Ehrheart, 609 F.3d at 595 (noting the “especially strong”
presumption in favor of voluntary settlements in “‘class actions
. . . where substantial judicial resources can be conserved by
avoiding formal litigation’” (quoting Gen. Motors Corp., 55
F.3d at 784)). But cognizant that Rule 23(e) places a duty on
district courts to safeguard the interests of class members, we
believe courts may find it necessary to drill down into the case
and into the agreement to make an independent, “scrupulous”
analysis of the settlement terms. Prudential, 148 F.3d at 317.
A. The District Court’s Opinion
The District Court determined that the settlement was
fair, reasonable, and adequate under Rule 23(e) after considering
the nine Girsh factors. The court’s analysis focused primarily
on the Injury Claims and did not specifically reference the
Purchase Claims. With regard to the complexity, expense, and
likely duration of the litigation, the court focused on (1) the

44
scope and breadth of the litigation, which stemmed from a
massive pet food recall, involved over 60 million containers of
more than 90 brands of pet food, and resulted in approximately
115 nationwide class action lawsuits; (2) the complex medical
and toxicological issues involving the combined impact of
melamine and cyanuric acid on small animal renal systems,
which likely would have required multiple experts, at an
“enormous cost,” who would be delving “into somewhat new
territory involving the effects of these toxins on cats and dogs”;
(3) the likelihood that discovery would be “extensive and
require significant resources”; and (4) counsels’ representation
that pursuing the actions “through pretrial motion practice,
formal discovery and trial would involve potentially several
additional years to this litigation and could deprive pet owners
of relief.” Fairness Opinion, 2008 WL 4937632, at *12-13.
The court determined that the reaction of the
overwhelming majority of the class had been positive, thereby
satisfying the second Girsh factor (as of the date of the fairness
hearing, over 9,357 claims had been received, with 89 exclusion
requests from U.S. residents, 25 from Canadian residents, and
28 objections). Id. at *13. With regard to the third factor, the
court found that adequate informal discovery was conducted as
well as some formal discovery, such that counsel were able to
gain an appreciation of the merits of the case as well as the legal
theories and risks. Id. at *14.
The court determined the fourth and fifth Girsh factors
were satisfied, as there was risk to plaintiffs in establishing
causation, liability, and damages if the case proceeded to trial.
Id. at *15. With regard to causation, the court focused first on
plaintiffs’ representations of toxicity. Plaintiffs stated that

45
although research on the toxicity of melamine and cyanuric acid
“demonstrated a strong relationship to acute renal failure,” few
studies had been conducted, and the studies that were conducted
were inconclusive with respect to how many pets became ill or
died as a result of eating recalled pet food. Id. The court also
credited plaintiffs’ representations that causation would be a
“major battleground” between experts, and would involve issues
individual to each pet, such as age and health at the time
allegedly contaminated food was consumed. Id. Liability
would be “hotly contested because the adulteration of wheat
gluten and rice protein concentrate . . . was a criminal act by
Chinese companies.” Id. Further, “as the product moved
through the manufacturing and distribution process . . . varying
degrees of liability would exist between manufacturers, private
labelers and entities that were strictly retailers.” Id. With regard
to damages, the court cited plaintiffs’ admission they did not
know how many pets became ill or died as a result of consuming
recalled pet food, thus creating uncertainty on the possible
ultimate damages. Id.
The sixth factor, the risks of maintaining a class through
trial, weighed in favor of settlement, because “given the
potential differences as to the health of the pet and the size of
the pet, there exist[ed] more than a slight risk of modification or
decertification” if the case proceeded to trial. Id. at *16. With
regard to defendants’ ability to withstand greater judgment and
enforceability of judgment, the court “acknowledg[ed] the fact
that Menu Foods [the major defendant in this litigation] ha[d]
incurred substantial cost in recalling the contaminated pet food,
costs incurred outside of th[e] litigation yet nonetheless factored
into the financial viability of Menu Foods’ ability to pay the

46
settlement. The amount of settlement, coupled with the
expectation that some pet owners w[ould] be able to recover
most if not all of their costs, weigh[ed] in favor of settlement.”
Id. (citing McCoy v. Health Net, Inc., 569 F. Supp. 2d 448, 462-
63 (D.N.J. 2008)).
Finally, the court determined the eighth and ninth Girsh
factors, the range of reasonableness of the settlement fund in
light of the best possible recovery and the range of
reasonableness of the settlement fund to a possible recovery in
light of all the attendant risks of litigation, weighed in favor of
settlement:
In this case, plaintiffs state that the Settlement
allows Class Members to have the potential to
obtain up to 100% of their economic damages
after submitting a valid claim while avoiding the
risk of litigation. Plaintiffs argue that since the
Class Members could potentially recover up to
100% of their economic damages, it is preferable
to the very real possibility of a smaller recovery
or no recovery at all. Plaintiffs also state that the
proposed Settlement represents a significant
recovery in light of the attendant risks of litigation
of proving causation, damages and liability.
The Court finds that the range of reasonableness
under the eighth and ninth Girsh factors weigh[s]
in favor of settlement. Although some Class
Members may not be reimbursed fully for their
economic damages depending upon whether the
fund can support the number of claims ultimately

47
 submitted, it does have the potential to allow most
Class Members to be reimbursed fully. The Court
also notes that by settling, the Class Members will
receive money now at present value, rather than
later, assuming they would be successful in
litigation.
Id. at *17 (citing Gen. Motors Corp., 55 F.3d at 806).
Objectors contend the District Court erred in finding the
settlement fair, reasonable, and adequate. After reviewing the
parties’ arguments and conducting our own review of the record,
we find the District Court lacked the information necessary to
evaluate the value and allocation of the Purchase Claims and so
we will vacate and remand on this one issue. In all other
respects we will affirm.
B. The $250,000 Cap on Purchase Claims
At the final fairness hearing, objectors argued that the
$250,000 allocated for Purchase Claims was inadequate and
rendered the settlement unfair and unreasonable. Objectors
pointed out that no sales information for the recalled food had
been presented to the court and that there was no information in
the record that would allow the court to evaluate whether
$250,000 was a reasonable settlement for the Purchase Claims.
Faced with objections to the allocation, the settling parties
explained to the court how they arrived at the $250,000
allocation.27 First, counsel contended that everyone at the

27
In their memorandum of law in support of their joint motion
for preliminary approval of the settlement, the settling parties
did not discuss the merits of the Purchase Claims, how the

48
negotiating table believed the “vast majority” of people who
wanted refunds for the purchase of recalled pet food had already
returned the food to retailers or called the toll-free numbers of
manufacturers and received a refund.28 Second, counsel

parties’ valued the Purchase Claims, or why the parties capped
the Purchase Claims at $250,000. Similarly, at the preliminary
fairness hearing, the settling parties offered no analysis of the
merits or value of the Purchase Claims and did not explain why
the Purchase Claims were capped at $250,000 out of a $24
million settlement. The discussion at the preliminary fairness
hearing focused almost exclusively on the Injury Claims.
28
At oral argument on appeal, the settling parties revealed for
the first time (as far as we can tell) more detailed information
about why they agreed upon a $250,000 cap on the Purchase
Claims. Plaintiffs’ counsel explained that the settling parties
knew that class members with documentation for Purchase
Claims had access to 100% recovery for their claims outside of
the settlement. The purpose of the $250,000 allocation, they
said, was to protect class members who lacked documentation
(that is, class members who had not retained their sales
receipts). Counsel also defended the figure, arguing that a
higher amount might induce fraudulent requests.
According to the Claims Administrator, 11,306 timely,
payable Purchase Claims have been made, for a total of
$597,427.05. See Letter from Edward J. Sincavage, CPA,
Heffler, Radetich & Saitta LLP, to counsel for plaintiffs and
defendants (Mar. 8, 2010) (on file with the Clerk’s Office). Of
the 11,306 Purchase Claims, 1,655 were submitted with
complete documentation. Id. Because the total amount

49
believed that the “vast majority” of the 60 million units of
recalled pet food was never sold to consumers. It was on the
retail shelves at the time the recall was announced and then was
removed from the shelves and put into storage. In response to
the court’s inquiry into whether the settling parties knew what
percentage of the recalled pet food was actually sold at retail,
counsel explained that the parties had “not been able to get
[their] hands around that” because of the unorganized way in
which some of the recalled food was returned.29
The court also inquired into whether any of the $8
million in Historic Payments had gone to claimants seeking a
refund for recalled pet food. Counsel explained that some
portion, “but not very much,” of the $8 million was
compensation for recalled food. Counsel for Petco, Wal-Mart,
and Petsmart explained that when a consumer submitted a
veterinary claim, a refund for recalled food, if due, would also
be paid to resolve the claim on a global basis. But, according to
counsel, the $8 million excludes any refunds paid to consumers
who simply brought recalled products back to the store from
which they made their purchase. These amounts “have not been
calculated as part of this proceeding.”

allocated for Purchase Claims is $250,000, payments for
Purchase Claims will be approximately 41.85% of the payable
amounts. Id. Thus, as the settlement currently stands, 1,655
class members with full documentation to support their Purchase
Claims will receive approximately a 41.85% recovery on these
claims.
29
See discussion infra note 31.

50
 The District Court determined that because the recall
involved a defined number of products manufactured over only
a short time period (approximately four months) and because
“many purchasers of Recalled Pet Food Products ha[d] already
[been] compensated outside of the Settlement,” the $250,000
allocation was fair and adequate:
The Recall involves a defined number of products
manufactured over only a few months [between
November 8, 2006, and March 6, 2007]. The
Settlement Agreement applies only to products
recalled in or after March 2007. More
importantly, it was represented to the Court
during the fairness hearing by co-lead counsel and
defense counsel—and it makes common
sense—that manufacturers and retailers have
already provided compensation to purchasers of
recalled products through the Historical Payments
or through point of sale refunds or [as] a result of
the Recall. Therefore, many purchasers of
Recalled Pet Food Products have already [been]
compensated outside of the Settlement.
Therefore, the $250,000 amount allocated is
adequate for payment for “Consumer Food
Purchase Claims” defined as “claims solely for
reimbursement of the costs associated with the
purchase of a Recalled Pet Food Product by a
Settlement Class Member who has not been
reimbursed for such costs to date, including
through return or exchange of the Recalled Pet
Food Products.”

51
Fairness Opinion, 2008 WL 4937632, at *8.
We see no error in the District Court’s common sense
finding that many purchasers of recalled pet food were
compensated for refunds outside of the settlement. But the fact
that many consumers had already received refunds did not
necessarily answer whether the $250,000 allocation was a fair
and adequate settlement of the Purchase Claims.
No one has challenged the adequacy of the $24 million
settlement fund, and we do not doubt the able District Court
properly determined that the fund was a fair and adequate
settlement of all the claims advanced by plaintiffs in this case.
The District Court carefully examined each of the Girsh factors.
But the parties did not focus on the Purchase Claims. We are
unable to determine whether the $250,000 allocation was a fair
and adequate settlement of the Purchase Claims given the risks
of establishing liability and damages and the likely return to the
class of continued litigation. Under this set of facts—where
funds available for some claims are capped while others are
not—the settling parties should have provided the court with
more detailed information about why they settled on the
$250,000 cap.
The settling parties also should have provided
information to determine the range of reasonableness of the
$250,000 allocation “in light of the best possible recovery,”
Prudential, 148 F.3d at 322, and “in light of all the attendant
risks of litigation,” Girsh, 521 F.2d at 157 (quoting City of
Detroit v. Grinnel Corp., 495 F.2d 448, 463 (2d Cir. 1974)). We
have explained that “in cases primarily seeking monetary relief,”
district courts should compare “the present value of the damages

52
plaintiffs would likely recover if successful, appropriately
discounted for the risk of not prevailing . . . with the amount of
the proposed settlement.” Gen. Motors Corp., 55 F.3d at 806
(quoting Manual for Complex Litigation (Second) § 30.44, at
252 (1985)); Prudential, 148 F.3d at 322. “This figure should
generate a range of reasonableness (based on size of the
proposed award and the uncertainty inherent in these estimates)
within which a district court approving (or rejecting) a
settlement will not be set aside.” Gen. Motors Corp., 55 F.3d at
806. Precise value determinations are not required. Cf.
Warfarin, 391 F.3d at 538 (finding no error in the district court’s
analysis of the final two Girsh factors where the plaintiffs’
expert “estimated recoverable damages to be as low as $7.1
million and as high as $133.8 million,” and the district court
described the methodology utilized by the expert to arrive at the
figures and concluded the estimate was reasonable).30
Here, the settling parties failed to provide the District
Court with estimations of recoverable damages for the Purchase
Claims including sales information quantifying the amount of

30
We note that in some cases, “the traditional calculus
suggested by the Manual for Complex Litigation . . . and
adopted by [us] cannot be applied.” Prudential, 148 F.3d at
323. In Prudential, calculating the value of the best possible
recovery would have been “exceedingly speculative” and both
the structure of the settlement and the uncapped benefit fund
made it “difficult to determine accurately the actual value of the
settlement.” Id. at 322-23. In such cases, district courts may not
be able to reduce the final Girsh factors “to a concrete formula.”
Id. at 322. This may or may not be the case here.

53
recalled pet food sold to consumers and the amount of refunds
already paid to consumers.31 If available, this information

31
There appears to be disagreement or confusion among the
parties with respect to the availability of sales information for
the recalled pet food. At the fairness hearing, counsel for
defendant Proctor & Gamble explained that defendants had been
unable to determine what percentage of the recalled pet food (60
million containers) was actually sold at retail, due to the manner
in which some of the product was returned. From what we can
discern from the record, it appears that after the recall was
announced, large quantities of recalled pet food were returned
to some defendants, and some amount of the returned product
was returned as “Unorganized Inventory,” consisting of boxes
and barrels full of a combination of recalled pet food, non-
recalled pet food, and other items that were inadvertently swept
off store shelves.
According to defendants, “[t]he circumstances under
which the Unorganized Inventory was returned to Defendants
prevented each manufacturing Defendant from determining the
amount of product sold and returned, and the amount of product
simply returned from store shelves.” At oral argument,
plaintiffs’ counsel argued that sales information could have been
obtained through discovery. Objectors contend the settling
defendants knew how much recalled product was sold, but
intentionally failed to inform the District Court of the
information. The District Court noted at the fairness hearing
that information on refunds could have been obtained.
From our review of the record, it appears that some
defendants have compiled the amount of returned “organized”
pet food. For example, the Director of Quality Assurance of

54
would have enabled the court to make the required value
comparisons and generate a range of reasonableness to
determine the adequacy of the settlement amount. Cf. Warfarin,
391 F.3d at 538 (settlement fund represented 33% of available
damages); Cendant, 264 F.3d at 241 (settlement represented 36-
37% of damages).
The settling parties contend they provided substantial
support for the adequacy of the $250,000 allocation by citing the
limited time period of the recall—November 8, 2006, through
March 6, 2007—and the significant refunds and compensation
provided for the purchase of recalled pet food outside of the
settlement through point-of-sale refunds, refunds offered by
manufacturers, and the Historic Payments. As noted, however,
this information was insufficient.
In sum, we find the District Court lacked the information

defendant Del Monte Foods Company testified that “[t]he
majority of the recalled pet treats and food held by Del Monte
are inventoried by product-type or SKU and date of manufacture
. . . . These units (pet treats or food packaged for retail sale) are
stored in cases and stacked on full or partial pallets. . . . As such,
there are records and documents that show whether this product
ever left Del Monte’s warehouses, or was delivered to a retailer
or distributor and returned.” And as of December 2007,
defendant Menu Foods was storing “approximately 2,123,974
cases of Organized Product, amounting to approximately
51,000,000 individual units of Organized Product, [and]
approximately 647,917 cases of Unorganized Materials,
[amounting to approximately 15,550,008 individual units of
Unorganized Materials].”

55
necessary to determine whether the $250,000 allocated to
Purchase Claims was fair, reasonable, and adequate.
Accordingly, we will remand for further Rule 23(e) proceedings
only on the allocation for Purchase Claims. On remand, the
settling parties should either produce the relevant information or
demonstrate that it is unavailable or that producing it would be
unfeasible.
C. The Release
The Picus/Kaffer objectors challenge the District Court’s
order approving the settlement’s release. Under the terms of the
release, “Settlement Class Members” release all claims that have
been brought or could have been brought against defendants that
relate in any way to “matters referenced in any claim raised . .
. in the Pet Food Recall Litigation.” “Settlement Class
Member[s]” are all individuals “who purchased, used or
obtained, or whose pets used or consumed Recalled Pet Food
Product(s)” who have not opted out. “Recalled Pet Food
Products” are defined as any pet food product that was recalled
on or after March 16, 2007, “because of allegedly contaminated
wheat gluten and/or rice protein concentrate.” Thus, by its
terms, the release does not apply to claims relating to pet food
that was not recalled after March 16, 2007, because of allegedly
contaminated wheat gluten and/or rice protein concentrate. In
other words, the release does not apply to non-contaminated pet
food, whether or not recalled by defendants or others.
The Picus/Kaffer objectors have asserted claims in non-
MDL pet food lawsuits alleging that they purchased pet food

56
that was falsely labeled as “Made in the USA.”32 Objectors

32
On April 30, 2007, Margaret Picus filed a class action in
Nevada state court (which was removed to the United States
District Court for the District of Nevada), alleging a scheme
among several defendants to sell “Ol’ Roy” brand pet food
products to consumers as “Made in the USA,” when some
ingredients were manufactured outside of the United States. See
Picus v. Wal-Mart Stores, Inc., 256 F.R.D. 651, 654 (D. Nev.
2009). On March 16, 2009, the Picus court granted the
defendants’ motion to deny class certification for litigation
purposes, holding that individual issues would predominate at
trial and that a class action was not the superior method of
adjudication. See id. at 660.
In May 2007, Robert Kennedy filed a complaint in
California state court (which was removed to the United States
District Court for the Southern District of California) alleging
several defendants engaged in a scheme through which four
varieties of Natural Balance pet food were sold to consumers
with the label “Made in the USA” when the products actually
were manufactured either in whole or in part in China. See
Kennedy v. Natural Balance Pet Foods, Inc., No. 07-cv-1082 H,
2007 WL 2300746, at *1 (S.D. Cal. Aug. 8, 2007). Objector
Daniel Kaffer was a member of the putative class in Kennedy.
On June 12, 2008, after the District Court in this case issued its
order granting preliminary certification of the settlement class
and preliminary approval of the settlement, the Kennedy court
denied plaintiff’s motion for class certification. The Kennedy
court determined the plaintiff and all the putative class members
were included in the settlement class identified by the settlement
in this case because the products specified in the complaint were

57
argued below that the release was overbroad because it
improperly released their mislabeling claims without
consideration. After questioning the parties at the fairness
hearing, the District Court disagreed. The court determined that
to the extent individuals purchased “Recalled Pet Food
Products,” their “Made in the USA” claims for those specific
purchases would be released by the proposed settlement. See
Fairness Opinion, 2008 WL 4937632, at *8. But claims for
purchases of pet food that was not recalled after March 16,
2007, because of allegedly contaminated wheat gluten and/or
rice protein concentrate were “outside the scope of the
Settlement Agreement.” Id. The court explained that Picus’s
and Kaffer’s claims were based on their alleged purchase of
mislabeled products over a period of more than four years,

among the “Recalled Pet Food Products” defined in the
settlement. Although plaintiff Kennedy had opted out of this
case, the Kennedy court denied his motion for class certification,
in part, because “every member of [the] putative class
appear[ed] to be subject to the MDL court’s preliminary
approval order enjoining other actions related to the recalled
products.” The court also denied the motion because individual
issues under state law predominated over common issues.
On January 6, 2010, the United States Court of Appeals
for the Ninth Circuit affirmed the denial of the motion for class
certification, but did not base its decision on the settlement in
this case. See Kennedy v. Natural Balance Pet Foods, Inc., 361
F. App’x 785 (9th Cir. 2010); see also Defs.’ Rule 28(j) Letter
(filed 1/14/10). Instead, the court affirmed on the ground
plaintiff failed to satisfy the predominance requirement of Rule
23(b)(3). See Kennedy, 361 F. App’x at 785.

58
beginning in April 2003, and their lawsuits asserted claims for
various pet food products and varieties that were outside the
scope of the pet food recalls. The court found that “[t]o the
extent these claims relate to products other than the Recalled Pet
Food Products, they are not the subject of this Pet Food Recall
MDL. Therefore, [Picus’s and Kaffer’s] claims in the state
actions are not released by the Settlement . . . .” Id.
Objectors contend the release should not have been
approved because: (1) the Kennedy court construed the release
as barring claims for non-contaminated pet food purchases; (2)
defendant Natural Balance argued before the Kennedy court that
the release barred claims for non-contaminated pet food
purchases; and (3) the list of recalled pet food products attached
to the Final Approval Order includes a few non-contaminated
Natural Balance dog food products.
Objectors’ arguments lack merit. The settling parties
agree that the release does not encompass claims relating to non-
contaminated pet food products, including any mislabeling
claims asserted in the Picus and Kennedy actions that are based
on non-contaminated pet food. The fact that the district court in
the Kennedy action may have misconstrued the release as
barring claims for non-contaminated pet food purchases is not
a reason to invalidate the release. The Kennedy court interpreted
the release before the final fairness hearing in this case and
before the District Court determined the scope of the release in
its opinion. More importantly, the Ninth Circuit affirmed the
decision to deny class certification in Kennedy without reference
to this case. See Kennedy, 361 F. App’x at 785.
Additionally, the fact that—prior to the fairness hearing

59
and final approval of the settlement—one defendant argued for
a different interpretation of the release does not render the
release invalid. There presently is no dispute between objectors
and the settling parties regarding the scope of the release. All
parties agree that the District Court properly determined that to
the extent the “Made in the USA” claims relate to products other
than “Recalled Pet Food Products,” they are not the subject of
this action and are therefore not released. Finally, the fact that
the list of “Recalled Pet Food Products” attached to the Final
Approval Order inadvertently includes a few non-contaminated
Natural Balance dog food products does not invalidate the
release. As defendants note, the list of recalled pet foods is not
determinative and has no independent significance—it must be
read in conjunction with the terms of the release, which does not
apply to claims relating to non-contaminated pet food.33

33
The Picus/Kaffer objectors also contend the District Court
erred by failing to grant their request for limited discovery to
establish the alleged insufficiency of the settlement. In Girsh,
we reversed the district court’s final approval of a class action
settlement, finding, among other things, that an objector “was
entitled to at least a reasonable opportunity to discovery against”
the settling parties because he had not been “afforded an
adequate opportunity to test by discovery the strengths and
weaknesses of the proposed settlement.” Girsh, 521 F.2d at
157. We later explained in Community Bank that our finding
regarding objector discovery in Girsh “was predicated on the
total inadequacy of the record upon which the settlement was
approved,” as well as the fact that the objector was denied
meaningful participation at the fairness hearing. Cmty. Bank,
418 F.3d at 316. We concluded, therefore, that “Girsh cannot

60
 D. Attorneys’ Fees
Appellants do not challenge the award of attorneys’ fees.
Because no one (no class member as objector) raised this issue
on appeal, there has been no briefing on the matter. In its Note
to the 2003 amendments to Rule 23, the Advisory Committee on
Civil Rules directed the district courts to rigorously scrutinize
the award of attorneys’ fees. See Fed. R. Civ. P. 23(h)(4)

stand for the proposition that, as a general matter, objectors have
an absolute right to discovery.” Id. “On the other hand, we
[have] recognized that discovery may be appropriate if lead
counsel has not conducted adequate discovery or if the
discovery conducted by lead counsel is not made available to
objectors.” Id.; see also Prudential, 148 F.3d at 325 (holding
the district court acted well within its discretion in denying an
objector’s request for discovery where the objector was able to
present his arguments to the court during the fairness hearing
and where the court found the objector “had ample opportunity
to avail himself of the substantial discovery provided to Lead
Counsel but failed to do so, and that additional discovery was
unnecessary because [the objector] focused primarily on legal
issues”). Here, because we will remand for further proceedings
on the fairness of the $250,000 allocation, we need not reach
this issue. On remand, objectors may renew their request for
limited discovery, which the court may grant or deny in its
discretion. See Cmty. Bank, 418 F.3d at 316 (“The District
Court has discretion to employ the procedures that it perceives
will best permit it to evaluate the fairness of the settlement.”
(internal quotation marks omitted)).

61
advisory committee’s note (“Whether or not there are formal
objections, the court must determine whether a fee award is
justified . . . .”). In this respect we do not disagree with the
concurrence. Nor do we conclude the question of attorneys’
fees cannot be considered on appeal sua sponte, depending on
the facts and circumstances of each case. Nevertheless, in this
case, we believe the district court made an extensive inquiry into
and discharged adequately its responsibility to assess the
reasonableness of attorneys’ fees.
IV. CONCLUSION
For the foregoing reasons, we will affirm the certification
of the proposed class for settlement and the denial of the motion
for leave to intervene. We will vacate the approval of the
settlement and remand for further Rule 23(e) proceedings on the
allocation for Purchase Claims.

62
In re: Pet Food Products Liab. Litig., Nos. 08-4741 & 08-
4779

WEIS, J., Concurring and Dissenting.

I am pleased to join the majority opinion but
write separately on two issues. There is no discussion in that
opinion of the size of the attorneys’ fees included in the
settlement: 31% of the $24 million settlement ($7.44
million). To my mind, the record does not demonstrate
adequate support for the amount awarded and, because we are
directing a remand, I would include the fee award as an
additional issue to be resolved.

Moreover, I am not persuaded that application
of the cy pres doctrine is appropriate in the class action
setting. I would hold that any funds remaining at the
conclusion of the claims process should be distributed to class
members where possible or should be escheated to the
government.

The petition for legal fees here presents an all-
too-familiar scenario. Plaintiffs’ lawyers submitted their
justification for a substantial fee, emphasizing the risks of an
unsuccessful outcome for class members and attributing the
negotiated settlement to exceptional skill and dedication.
Defendants remained silent on the issue, likely because, as we
have observed on a number of occasions, they were interested
primarily in “buying peace.” See, e.g., In re Gen. Motors
Corp. Pick-Up Truck Fuel Tank Prods. Liab. Litig., 55 F.3d
768, 819-20 (3d Cir. 1995) (“G.M. Trucks”) (A[T]his court
has recognized that >a defendant is interested only in

1
disposing of the total claim asserted against it; . . . the
allocation between the class payment and the attorneys= fees
is of little or no interest to the defense.=@ (quoting Prandini v.
Nat=l Tea Co., 557 F.2d 1015, 1020 (3d Cir. 1977))).

Recognizing the parties’ disincentives to invoke
judicial scrutiny of fee awards, as well as the potential for a
“misalignment of the attorneys’ and the class’s interests,” id.
at 821, we have held that “a thorough judicial review of fee
applications is required in all class action settlements,” id. at
819. The purpose of this robust and exacting review is to
detect not only “actual abuse” caused by attorney-class
conflict, but also “potential public misunderstandings [that
such conflict] may cultivate.” Id. at 820 (quoting In re Agent
Orange Prod. Liab. Litig., 818 F.2d 216, 225 (2d Cir. 1987)).

Given the plaintiffs’ desire to enforce the
judgment and the defendants’ longing to be done with this
litigation, it is not surprising that no party to this appeal has
challenged the attorneys’ fee award. Nevertheless, that does
not, in my opinion, relieve this Court of the responsibility it
has assumed to ensure that the award is reasonable.

I.

The Notice of Appeal cites the judgment
enforcing the settlement agreement, a component of which
included the fee award. Accordingly, our jurisdiction over
that matter is not in question. The issue here is whether sua
sponte review of the reasonableness of the attorneys’ fee
award is appropriate in these circumstances where the matter
has not been briefed.

2
 The courts’ general policy, born in part of
historically self-imposed limitations and as a means of coping
with overburdened dockets, is to deny review of issues not
briefed on appeal. See, e.g., Pfeifer v. Jones & Laughlin Steel
Corp., 678 F.2d 453, 456-58 (3d Cir. 1982), vacated on other
grounds, 462 U.S. 523 (1983) (failure to object in district
court to measure of damages barred appellate review of that
issue). Pfeifer, however, did not purport to make this policy
absolute.

Nor has the Supreme Court definitively
resolved the issue of reviewability. In Singleton v. Wulff,
428 U.S. 106, 121 (1976), the Court said, “The matter of what
questions may be taken up and resolved for the first time on
appeal is one left primarily to the discretion of the courts of
appeals, to be exercised on the facts of individual cases. We
announce no general rule.”

A noteworthy case in this field is Erie R.R. Co.
v. Tompkins, 304 U.S. 64 (1938), whose landmark holding --
that in diversity cases, substantive state law, not federal
common law, controls -- addressed an issue never raised by
the parties.1

1
See Albert Tate, Sua Sponte Consideration on Appeal, 9
Trial Judges J. 68 (1970), as reprinted in Robert Leflar,
Appellate Judicial Opinions 126, 127 (1974). As Justice Tate
explained, “[a] strong majority felt that the new principle
announced was the correct law. . . . To fail to apply the right
principle now, approving by inference the wrong or former
one . . . might cause injustice not only to present litigants, but

3
 Sua sponte determination of an issue may be
especially appropriate where the matter involves more than
just the individuals, and addresses a matter of concern to the
courts and the judicial system. It is also proper where such
determination will neither require nor result in much great
additional work for the court or the parties.2

As lawyers and courts make more frequent use
of, and grow increasingly reliant on, the conveniences offered
by class actions (and particularly settlement class actions), it
becomes ever more incumbent on the appellate courts to
ensure that resort to these forms of mass litigation leads to
outcomes that reflect positively on the courts and the judicial
system. Cf. G.M. Trucks, 55 F.3d at 820 (court must “be
alert to the presence in the fee agreement of any actual abuse
or appearance of abuse capable of creating a public
misunderstanding”). Vigorous review of attorneys’ fee
awards by the appellate courts, to certify that such awards are

also to numerous others erroneously relying upon th[at]
principle.” Id.
2
The scope of appellate review in this area has been the
subject of spirited academic discussion. See Robert J.
Martineau, Considering New Issues on Appeal: The General
Rule and the Gorilla Rule, 40 Vand. L. Rev. 1023 (1987);
Rhett R. Dennerline, Pushing Aside the General Rule in
Order to Raise New Issues on Appeal, 64 Ind. L. J. 985
(1989); Allan D. Vestal, Sua Sponte Consideration in
Appellate Review, 27 Fordham L. Rev. 477 (1959), as
reprinted in Robert Leflar, Appellate Judicial Opinions 129,
130 (1974); B.E. Watkins, Manual of Appellate Court
Opinions 154 (1977).

4
neither incongruous with the work performed nor excessive in
light of the results obtained for class members, will reinforce
the public’s confidence in the judicial system.

I do not part ways with the result in the Pfeifer
case, because here there are two critical differences. First, on
the issue of attorneys’ fees, the class was not independently
represented in the district court or before this panel. Unlike
other items in the settlement agreement, where the self-
interests of both plaintiffs and defendants were in play, no
such constraints dominated the determination of a reasonable
fee award.

Second, we have adopted a policy of closely
monitoring fees in class actions. See In re Cendant Corp.
PRIDES Litig., 243 F.3d 722, 731 (3d Cir. 2001) (granting
standing to a non-intervening class member seeking to
challenge fee award on appeal because “reviewing courts
retain an interest -- a most special and predominant interest --
in the fairness of class action settlements and attorneys’ fee
awards”). Failing to raise reasonableness sua sponte would
undermine that commitment. See id. at 729-30 (“it would be
preposterous to hold that, even where a district court awarded
a fee of 75% of the recovery to class counsel, we would have
no power to review such an inappropriate and outrageous
award in the absence of an objector” ).

Furthermore, because this case will be
remanded to the trial court on other issues, remand for
determination of the propriety of the fee award would not
create much additional work for the trial court or class
counsel.

5
 In view of the circumstances here, I have no
reservations about discussing the fee award even though the
parties have not briefed that matter. The class action
judgment as a whole is before the panel, and this Court has
assumed the responsibility of monitoring fee awards. The
parties may not thwart that policy by failing to brief the issue.
Accord G.M. Trucks, 55 F.3d at 801 (“Beyond their ethical
obligations to their clients, class attorneys, purporting to
represent a class, also owe the entire class a fiduciary duty
once the class complaint is filed”).

II.

The literature and court opinions discussing fees
in class actions are voluminous and need not be examined at
length here.3 Suffice it to say that, whether on its face a fee
of 31% -- or approximately $7.5 million -- of a recovery of
$24 million is reasonable requires more information than the
record discloses.

3
For a small example of appropriate scholarly commentary,
see Dennis E. Curtis & Judith Resnick, Contingency Fees in
Mass Torts: Access, Risk, and the Provision of Legal Services
When Layers of Lawyers Work for Individuals and
Collectives of Clients, 47 DePaul L. Rev. 425 (1998); John C.
Coffee, Jr., Rescuing the Private Attorney General: Why the
Model of the Lawyer as Bounty Hunter is not Working, 42
Md. L. Rev. 215 (1983); John C. Coffee, Jr., Understanding
the Plaintiff’s Attorney: The Implications of Economic
Theory for Private Enforcement of Law Through Class and
Derivative Actions, 86 Colum. L. Rev. 669 (1986).

6
 In reviewing an award of attorneys’ fees, we
apply an abuse of discretion standard. See In re Rite Aid
Corp. Sec. Litig., 396 F.3d 294, 300 (3d Cir. 2005).
However, we require district courts “to clearly set forth their
reasoning for fee awards so that we will have a sufficient
basis to review” them. Id. at 301; see also Cendant PRIDES
Litig., 243 F.2d at 728 (district court must perform “extensive
analysis and inquiry before determining the amount of fees”
so court of appeals can exercise its “independent interest in
monitoring . . . awards”). Cf. Perdue v. Kenny A., ___ U.S.
___, 130 S. Ct. 1662, 1676 (2010) (in analogous statutory fee-
shifting case, remanding for re-calculation of attorneys’ fees
where district court’s methodology prevented appellate courts
from exercising “meaningful appellate review”).

There appears to be a perception in many
district courts that the twenty-five percent “benchmark” is an
appropriate place to begin the fee analysis for most common
fund purposes. Too often that is the end of the discussion,
rather than a beginning point for determining whether a
particular fee is reasonable. In Goldberger v. Integrated
Resources, Inc., 209 F.3d 43 (2d Cir. 2001), the Court of
Appeals noted the prevalence of routine fee awards during the
1970=s as being in the 20-30 percent area. That range,
however, was later considered “to yield too little for the
client-class,” id. at 48, and other methodologies to calculate
fees were adopted, id.

This Court is presented with a record that
essentially adopts plaintiff=s counsel=s petition without
adequate explication. The District Court carefully noted that
its consideration of the award was based upon what the class
attorneys put forth. I do not impugn the integrity and

7
diligence of counsel by requesting more information on the
subject.

Counsel=s efforts appear to have been expended
in three general areas: intensive negotiations and mediations
sessions with defense counsel; inspection of large quantities
of recalled goods to arrive at a stipulation for preservation of
evidence; and motions in the District Court to restrict
communications by a few defendants with punitive class
members.

An advocate for the reasonableness of the $7.5
million fee might wish to know approximately how many
lawyers for the class actually participated in the negotiations
with defense counsel and at the mediation sessions. The
plaintiffs’ petition refers to one meeting when sixty lawyers
appeared for the defendants. It seems unlikely that this was
typical of the mediation or bargaining sessions, although it
points out the difficulty in working out a settlement with a
large, unorganized group. But, for purposes of review, it
would be helpful to know, at least in general terms, what
amount of legal talent was needed -- and how many lawyers
actually were present -- at the negotiation and mediation
sessions.

Plaintiffs= counsel commendably notes their
obligation to avoid duplication in the division of legal work.
Yet, apart from this general acknowledgement, the petition is
vague in demonstrating the efficient use of the personnel
available.

8
 For example, counsel discussed in general terms
proper efforts to delegate various tasks among the many
lawyers. However, there remains the possibility that, in light
of the large number of consolidated class actions -- and the
lawyers involved with each such action -- much time was
devoted to task assignment and coordination among the many
law firms. An appropriate inquiry would be whether that
organizational activity was a necessary and limited legal
function, and thus a reasonable expenditure that benefitted the
class as a whole.

The difficulty in proving liability in the
underlying suit is another factor to be considered in justifying
the size of a fee. When defendants’ culpability is clear, less is
required of plaintiffs’ counsel than when responsibility is
sharply contested. In this connection, the amount of spade
work done by government agencies bears on the
reasonableness of the fee.

Both the Federal Drug Administration and the
Justice Department investigated the tainted products at issue
here. Although no enforcement was undertaken by the FDA,
indictments were issued against some of the defendants.
Plaintiffs do not adequately discuss the benefits that the class
derived from the government’s action but merely point out
that it did not solve all of the liability problems. Counsel
should not charge the class for acquiring evidence of
culpability by piggy-backing on the criminal and agency
proceedings. Although the liability here may well not have
been foolproof, seeking recovery for loss caused by a recalled
contaminated product is hardly an insurmountable task. A
demonstration of the benefits derived by the class from the

9
government’s investigation would be of assistance for
purposes of our review.

Generally, we allow lead counsel to distribute
the total fee award to other participating lawyers. However,
no explanation here has been given for the difference in fees
requested for the American lawyers (25%), and the Canadian
lawyers (6%). There may well be sound reasons for asking
approval of this allocation. However, the Court should have
been given the basis for that sharp difference in distribution
and been permitted to review its reasonableness.

Plaintiffs’ counsel asserted that, prior to MDL
consolidation, some defendants had contacted putative
members of the class, attempting to secure information about
the potential value of their claims and, in some instances,
directly or indirectly attempting to settle claims. Counsel
brought this to the attention of the District Court and, with
entry of a consent order, resolved the matter amicably. To
what extent those proceedings were helpful to the class -- as
contrasted to the interests of class counsel -- is not discussed
in the record, nor is the relative amount of the total fee award
attributed to this issue analyzed.

In another phase of the case, counsel inspected
the recalled food at several warehouses, leading to
agreements allowing defendants to dispose of most of this
contaminated material, leaving enough for evidentiary
purposes if necessary at a trial. On the surface, this appears
to be a straightforward task, not requiring extensive activity
by highly experienced lawyers. There may be justifiable
reasons for the fee charged to that work, but the lack of record
information forecloses a robust review.

10
 It may be that, on remand, plaintiffs’ counsel
could develop an adequate record to demonstrate the
reasonableness of the $7.44 million fee. At this stage,
however, I believe that further explanation is warranted
before this Court puts its imprimatur on the award.

III.

The settlement agreement also provides that any
funds remaining after administration of the settlement and
payment of all valid claims will be distributed to animal
welfare-related organizations in the United States and
Canada. The size of this charitable gift is immeasurable at
this point and may indeed be insignificant at the conclusion of
all proceedings. However, I do not believe that application of
the cy pres doctrine is appropriate in litigation of this nature.

Cy pres was historically used in testamentary
trusts where it was not possible to distribute funds in precise
accordance with the testator’s wishes. In such cases, the
money was distributed in a manner that came as close as
possible (in Norman French, “cy pres comme possible”) to the
testator’s original intent. That doctrine is well established in
the law.

Applying cy pres to the class action before us,
however, is quite another matter. Certainly, this law suit is
not charitable. There are no individuals whose wishes need
be considered and there is no intent to benefit charitable
purposes that can be attributed to the class members or the
lawyers who established the fund.

11
 Traditionally, unclaimed monetary awards have
escheated to the state. The application of that rule seems
reasonable and in accordance with general legal and equitable
principles. Here, the parties benefitted by the action of the
state in providing a forum to resolve their differences and, in
that light, repayment to the government to defray some of the
costs of the court system would be in the nature of a user fee.

We deal here with charitable contributions to
which members of the class never voiced any interest or
approval and a procedure subject to criticism as an
inappropriate judicial function. 4

I would require the District Court to reconsider
the disposition of any funds remaining at the conclusion of
this litigation. Distribution to the class members who have
not received complete compensation should be considered
first. If such payments are not feasible or are unduly difficult,
the fund should escheat to the government.

4
See Adam Liptak, Doling Out Other People’s Money, N.Y.
Times, Nov. 26, 2007, at A14; Editorial, When Judges Get
Generous: A Better Way to Donate Surpluses from Class-
Action Awards, Wash. Post, Dec. 17, 2007. Cf. Am. Law
Inst., Principles of the Law: Aggregate Litigation, § 3.07, at
218-19 (2010) (rejecting “the position . . . that a cy pres
remedy is preferable to further distributions to class
members” and recommending that courts make numerous
inquiries as to the viability of additional payments to the class
before consideration of the cy pres remedy).

12