Nutramigen Baby Formula Litigation — English language
IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS
COUNTY DEPARTMENT – CHANCERY DIVISION
No. 01 CH 11151
Francy Cardenas, individually; on behalf of Nicolas Cardenas, a minor; and on behalf of all others similarly situated,
Plaintiffs vs. Mead Johnson & Company, Defendant.
NOTICE OF CLASS ACTION AND PROPOSED SETTLEMENT
TO: Any and all persons in the United States and Puerto Rico who purchased Nutramigen® 16 ounce powder infant formula between August 9, 2000, through July 7, 2001, or who purchased Nutramigen® 32 ounce ready-to-use infant formula between February 22, 2001, through July 7, 2001.
PLEASE READ THIS NOTICE CAREFULLY. IT CONTAINS IMPORTANT INFORMATION ABOUT
YOUR RIGHTS UNDER THE PROPOSED CLASS ACTION SETTLEMENT DESCRIBED BELOW.
1. WHAT THIS LAWSUIT IS ABOUT
On July 10, 2001, Francy Cardenas (the “Named Plaintiff”) filed a complaint against Defendant Mead Johnson & Company (“MJC”) in the Circuit Court of Cook County, Illinois (“Court”), on behalf of herself and a putative class of purchasers of certain Nutramigen® 16 ounce powder infant formula and 32 ounce ready-to-use infant formula (“Infant Formula”). The Named Plaintiff brought claims alleging consumer fraud, product liability, negligence and breach of warranties. Plaintiff alleges that the Infant Formula contained incorrect Spanish language instructions, resulting in under-dilution of the powder Infant Formula and over-dilution of the ready-to-use Infant Formula. MJC has denied these allegations, and asserted several affirmative defenses. The Court has not decided the merits of this case.
After investigation and discovery into the merits of the case, the parties have negotiated this proposed settlement of this disputed claim. MJC’s willingness to enter into this settlement reflects its desire to satisfy its customers, and to show its commitment to the nutrition of infants in Spanish speaking communities. It does not constitute an admission of liability or wrongdoing. This is not an action for personal injury damages.
2. WHO IS A MEMBER OF THE CLASS, AND WHO IS CLASS COUNSEL
The proposed settlement class consists of any and all persons in the United States, including Puerto Rico, who purchased Nutramigen® 16 ounce powder infant formula between August 9, 2000, through July 7, 2001, or who purchased Nutramigen® 32 ounce ready-to-use infant formula between February 22, 2001, through July 7, 2001 (“Settlement Class”), and who had financial damages because of over- or under- diluting the Infant Formula. If you meet these criteria you are a member of the Settlement Class and are eligible to participate in this class settlement. NOTE: Financial damages include any type of economic or financial injury, but do not include claims for the refund of purchase price where the claimant obtained the product for free through WIC or some other source, and do not include claims for any personal injury damages.
The Court has appointed as the lawyers representing the Settlement Class: Thomas A. Zimmerman, Jr. of Zimmerman and Associates, P.C., 100 West Monroe Street, Suite 1300, Chicago, Illinois 60603, and Ruben M. Garcia of Ruben M. Garcia, P.C., 899 Skokie Boulevard, Suite 300, Northbrook, Illinois 60062 (“Class Counsel”).
3. THE PROPOSED SETTLEMENT
The Court has granted preliminary approval of the settlement described in this notice. The terms of the proposed settlement are summarized below. The settlement will not become final and binding unless and until the agreement receives final approval by the Court and that Order becomes final and non-appealable.
Members of the Settlement Class who have not previously received payment from MJC for all or part of their claimed financial damages have the right to participate in this settlement.
Under the settlement, MJC will provide a variety of nutritional products at a 25% discount (“Discounted Product”). You can obtain a complete list of available products by calling 1-866-267-5578 toll free, Monday through Friday, between the hours of 9 am and 5 pm ET. The members of the Settlement Class and their immediate family may obtain a maximum discount of $350 off Discounted Product (“Household Benefit”). MJC will also make the 25% available to charitable organizations serving Spanish speaking communities, with a maximum benefit of $5,000 per organization. The Named Defendant will provide a maximum of $3.4 million in Product Discount. You may obtain the Discounted Product up to your Household Benefit between January 11, 2005 to January 11, 2006 (“Benefit Period”) or until the total Class Benefit has been reached, whichever comes first, on orders placed by calling 1-866-267-5578 toll free, Monday through Friday, between the hours of 9 am and 5 pm ET. You may obtain any combination of Discounted Product offered, and there is no limit on the number of times you may obtain the Discounted Product during the Benefit Period, other than the limits set forth above. This Discount is ONLY available for use with purchases made over Mead Johnson’s 1-866-267-5578 toll free line. You cannot use this discount in any store.
As an additional part of this settlement, MJC will donate $100,000 (“Charitable Relief”) to the El Hogar Del Nino charity (“Charity”), which is a charity focused on serving the needs of Hispanic children.
In compensation for their work on behalf of the Settlement Class, Class Counsel have the right to file a request with the Court for payment of reasonable attorneys fees and costs in a total amount not to exceed $262,000, subject to Court review and approval. Any attorneys fees awarded by the Court will not affect the benefits available to claimants.
4. FAIRNESS HEARING
The Court has scheduled a Fairness Hearing at 11:00 a.m., on December 3, 2004, before Judge Bernetta Bush in Courtroom 2008 at the Richard J. Daley Center, 50 West Washington Street, Chicago, IL 60602. You have the right to appear in person or through separate counsel, but you are not required to appear and your interests otherwise will be represented by Class Counsel. The purpose of the hearing is to determine the fairness, reasonableness, and adequacy of the settlement, and whether an order and final judgment should be entered approving the proposed settlement. The Court will also consider any application for an award of attorneys fees and reimbursement of expenses, and any written objections previously submitted in accordance with the procedures described in Section 6.C below.
5. LEGAL EFFECT OF THE SETTLEMENT (RELEASE OF CLAIMS)
If you remain in the Settlement Class and the proposed settlement is finally approved, you will be unable to sue the Named Defendant or affiliated entities including Bristol-Myers Squibb Company for any claim for financial damages arising from over-dilution or under-dilution of the Infant Formula, and you will be bound by a judgment dismissing the lawsuit against the Named Defendant. If you remain in the Settlement Class and make no timely objection to the settlement, you waive all rights to appeal any term of the settlement and any decision made by the Court concerning your entitlement to benefits under the settlement and to make additional objections to any term or condition of the settlement or any order by the Judge.
6. WHAT YOUR OPTIONS ARE
As a member of the Settlement Class, you have the following options:
A. You May Remain a Member of the Settlement Class and You May Obtain the Product Discount Benefit.
Although your rights will be affected if the settlement receives final approval by the Court, you are not required to take any action in response to this notice. If you remain a member of the Settlement Class, you will be bound by any judgment in the lawsuit, favorable or unfavorable to the class. You will be a member of the Settlement Class unless you request exclusion from the lawsuit by filing a request for exclusion as outlined below. By remaining in the settlement Class you will not subject yourself to any obligation to pay the costs of litigation. You may participate in the proposed settlement, if it is approved by the Court, only if you remain a member of the class and fill-out and submit a Proof of Claim Form. In order for you to obtain the relief offered by the Named Defendants in this settlement, you must obtain a Proof of Claim Form and send it by December 15, 2004 to Mead Johnson & Company, Nutramigen® Class Action Settlement, Mail Code A21, 2400 West Lloyd Expressway, Building 35, Evansville, IN 47721-0001. You may obtain a Proof of Claim Form by calling 1-866-267-5578 toll free, Monday through Friday, between the hours of 9 am and 5 pm ET. The Proof of Claim Form will give the instructions for claiming the benefit. Be sure to sign the Proof of Claim Form and deposit it into the U.S. Mail in advance of the deadline to ensure that it is received on a timely basis. Any claims not received by that deadline will be forever barred. If you do not respond to this notice and take no further action, you will be bound by the terms of the settlement but you will not be eligible to obtain the relief offered by the Named Defendant. If you remain a member of the Settlement Class, your claims, if any, to recover money damages for personal injury or any other health related claims will not be affected.
B. You May Exclude Yourself From The Class.
If you fall within the description of the Settlement Class certified by the Court but do not wish to be bound by the settlement, you must mail a written request to be excluded from the class so that it is received on or before November 18, 2004. Be sure to deposit your written request into the U.S. Mail in advance of the deadline to ensure that it is received on a timely basis. Requests for exclusion from class members which are received after this date will not be effective. Your request for exclusion must be exercised individually and not collectively, and state that you wish to be excluded from the class, as well as your name and address, the name and address of any lawyer who represents you in this matter, a description of your claimed financial damages, if any, and the name of this lawsuit (Cardenas, et al. v. Mead Johnson & Co., et al., Case No. 01 CH 11151). You must sign your request for exclusion personally or by legal counsel. The request for exclusion must be mailed to all three of the following:
Thomas A. Zimmerman, Jr. Anthony Anscombe
Zimmerman and Associates, P.C. Sedgwick, Detert, Moran & Arnold LLP
100 West Monroe Street, Suite 1300 One North Wacker Drive, Suite 4200
Chicago, IL 60603 Chicago, IL 60606
(One of the Class Counsel) (One of the attorneys for MJC)
Clerk, Circuit Court of Cook County
Chancery Division
Richard J. Daley Center
50 West Washington St., Room 802
Chicago, IL 60602
Attn: Cardenas, et al. v. Mead Johnson & Co., et al., No. 01 CH 11151
If you timely file a request for exclusion: (1) you will not receive any benefits under this proposed settlement; (2) you will not be bound by the terms and conditions of the settlement or any judgment in this lawsuit; and (3) you may (at your own expense) pursue an individual claim (but not a class action) against the Named Defendant for financial damages you incurred associated with your following the allegedly incorrect Spanish language instructions on the Infant Formula.
C. You May Object to the Proposed Settlement.
If you remain in the Settlement Class and wish to object to the proposed settlement, you must mail your objections, including the specific reasons why you believe that the Court should find that the proposed settlement is not in the best interests of the Settlement Class, any factual or legal support for such objection, and any supporting papers to the Clerk of the Court and to the counsel designated in Section 6.B. above, so that they are received on or before November 18, 2004. Be sure to deposit your written objection into the U.S. Mail in advance of the deadline to ensure that it is received on a timely basis. Any objections which are not received in writing on or before this date will not be heard or considered by the Court. Whether or not you object to the settlement, if you are a member of the Settlement Class you may, but are not obligated to, appear at the Fairness Hearing before Judge Bush on December 3, 2004 (see “Fairness Hearing” Section 4 above).
Even if you have filed an objection, if you want to preserve your ability to obtain the relief offered by the Named Defendants in this settlement you should submit a Proof of Claim Form by the deadline identified in Section 6.A. above. In the event the Court overrules your objection and approves the settlement, you will be bound by its terms to the same extent as someone who chooses to participate in the proposed settlement without objection and your Proof of Claim Form will be considered in the same manner as if you had not filed an objection.
7. ADDITIONAL INFORMATION
This notice has been approved by the Court as a fair summary of the case and terms of the proposed settlement. This notice is general in nature and is not intended as a complete statement of all of the issues in the lawsuit or the specific terms of the proposed settlement. The complaints in the lawsuit, the complete terms of the proposed settlement, and all other pleadings and relevant documents in the lawsuit are on file and may be examined or copied (at your own expense) during regular business hours at the office of the Clerk of the Circuit Court identified in Section 6.B. above. There is a provision in the settlement that allows the Named Defendants to withdraw from the settlement under certain circumstances of which the Court is aware and the terms of which are filed under seal. If you have any questions about this matter or this notice, you may consult with any of the Class Counsel identified in Section 2 above, or you may consult with another attorney (at your expense) about your rights and obligations. You also have the right to file an individual appearance in the case if you wish. DO NOT CONTACT THE CLERK OF THE COURT OR THE JUDGE FOR INFORMATION, as they are not permitted to answer your questions.
DATED: August 13, 2004 August 13, 2004 By Order of the Honorable Bernetta D. Bush
Judge of the Circuit Court of Cook County, Illinois
