Case 3:13-cv HSG Document 323 Filed 12/11/15 Page 1 of 14

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1 Case :-cv-00-hsg Document Filed // Page of 0 0 Robert B. Hawk (Bar No. 0) Stacy R. Hovan (Bar No. ) 0 Campbell Avenue, Suite 00 Menlo Park, CA 0 Telephone: (0) -000 Facsimile: (0) - robert.hawk@hoganlovells.com stacy.hovan@hoganlovells.com Michael J. Shepard (Bar No. ) Embarcadero Center, Suite San Francisco, CA Telephone: () -0 Facsimile: () - michael.shepard@hoganlovells.com John E. Hall (admitted pro hac vice) Gregg D. Michael (admitted pro hac vice) Amy J. Roy (admitted pro hac vice) Louis A. DePaul (admitted pro hac vice) ECKERT SEAMANS CHERIN & MELLOTT, LLC U.S. Steel Tower 00 Grant Street, th Floor Pittsburgh, PA Telephone: () -000 Facsimile: () -0 jhall@eckertseamans.com gmichael@eckertseamans.com aroy@eckertseamans.com ldepaul@eckertseamans.com Attorneys for Defendant STARKIST CO. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION SILICON VALLEY PATRICK HENDRICKS, individually and on behalf of all others similarly situated, v. STARKIST CO., Plaintiff, Defendant. Case No. :-cv-00-hsg DEFENDANT STARKIST CO. S RESPONSE TO OBJECTIONS Hon. Haywood S. Gilliam, Jr. Date: December, 0 Time: :00 p.m. Courtroom:, th Floor CASE NO. :-CV-00-HSG

2 Case :-cv-00-hsg Document Filed // Page of TABLE OF CONTENTS I. BACKGROUND... A. The Packaged Seafood Products Antitrust Litigation & The Amended Release... B. Objections... II. THE COURT SHOULD APPROVE THE SETTLEMENT WITH THE AMENDED RELEASE... A. Legal Standard... B. The Amended Release Properly Excludes Antitrust Claims Based on Under-filling... SILICON VALLEY 0 0 i NO. :-CV-00-HSG

3 Case :-cv-00-hsg Document Filed // Page of CASES TABLE OF AUTHORITIES Page(s) 0 0 Boyd v. Avanquest N. Am., Inc., No. -cv-0, 0 WL (N.D. Cal. July, 0)... Christensen v. Hillyard, Inc., No. -cv-0, 0 WL (N.D. Cal. Aug., 0)... Class Plaintiffs v. City of Seattle, F.d (th Cir. )..., Custom LED, LLC v. ebay, Inc., No. -cv-000, 0 US Dist. LEXIS 0 (N.D. Cal. June, 0)... Daniels v. Aeropostale W., Inc., No. -0, 0 WL 0 (N.D. Cal. May, 0)... Hesse v. Sprint Corp., F.d (th Cir. 00)..., Howard v. Am. Online Inc., 0 F.d (th Cir. 000)..., In re Hewlett-Packard Co. S holder Deriv. Litig., No. :-cv-000, 0 WL (N.D. Cal. Mar., 0)... Jaffe v. Morgan Stanley & Co., Inc., No. C 0-0, 00 WL (N.D. Cal. Feb., 00)... Kirk Dahl v. Bain Capital Partners, LLC, et al., No. 0-, ECF No. (D. Mass. Nov., 00)... Reyn s Pasta Bella, LLC v. Visa USA, Inc., F.d (th Cir. 00)... Shaffer v. Cont l Cas. Co., F. App x (th Cir. 00)... Stokes v. Interline Brands, Co., No. -cv-0, 0 WL (N.D. Cal. Nov. 0, 0)..., Tijero v. Aaron Bros., Inc., No. 0-00, 0 WL 0 (N.D. Cal. Jan., 0)... Williams v. Boeing Co., F.d 0 (th Cir. 00)... SILICON VALLEY ii NO. :-CV-00-HSG

4 Case :-cv-00-hsg Document Filed // Page of OTHER AUTHORITIES Fed. R. Civ. P. (e)()... SILICON VALLEY 0 0 iii NO. :-CV-00-HSG

5 Case :-cv-00-hsg Document Filed // Page of 0 0 Defendant StarKist Co. ( StarKist ) has reviewed each of the nine objections ( Objections ) filed in connection with the proposed settlement in this action. None of those Objections set forth any reason that the settlement should not be finally approved as fundamentally fair, reasonable and adequate to the settlement class. StarKist s position is and remains, therefore, that the Court should finally approve the settlement and enter final judgment in the case. With respect to the substance of specific Objections, the arguments in large part concern Plaintiffs counsel s application for attorneys fees. StarKist previously expressed its views on Plaintiffs motion for an award of fees (ECF No. ) and now has nothing further for the Court on that topic. Most of the remaining points and argument offered by the Objectors e.g., that the settlement agreement provides for no direction of any cy pres award, that the dollar benefit recovered for the class is insufficient, that the claims process is too easy, permitting fraud, or too difficult concern points that lack merit based on a simple review of the agreement itself or that the Court already considered and addressed in connection with preliminary approval. (See July, 0 Order Granting Preliminary Approval, ECF No..) The remaining Objections relate to the scope of the Release provided to StarKist by the settlement class. With respect to the Release, StarKist has considered the Objectors arguments and has, in response, agreed to amend the language of the Release which amendment is documented in the Amendment to Stipulation of Settlement (the Amended Release ), attached as Exhibit A to the accompanying Declaration of Robert B. Hawk ( Hawk Decl. ). As discussed below, the Amended Release addresses and resolves any legitimate concern raised by the Objectors by tracking the allegations and claims in the Complaint in accordance with wellestablished Ninth Circuit precedent. Because the Amended Release is proper in light of controlling law, and because all Objections, including those going to the breadth of the Release, are without merit, StarKist respectfully requests that the Court overrule the Objections and grant final approval to the settlement. ECF Nos.,,,,,,,,. SILICON VALLEY NO. :-CV-00-HSG

6 Case :-cv-00-hsg Document Filed // Page of 0 0 I. BACKGROUND A. The Packaged Seafood Products Antitrust Litigation & the Amended Release In September 0, counsel for Olean Wholesale Grocery Cooperative, Inc. ( Olean ), Christopher Lebsock of the Hausfeld firm, contacted counsel for StarKist, expressing concern that the Settlement Agreement Release in this case was overbroad and could affect the rights of Olean and a putative class of direct purchasers of packaged seafood products ( PSPs ) to prosecute antitrust claims filed earlier this year. (Hawk Decl..) On that basis, Olean s counsel requested that the parties to this case agree to change the release provision in the Settlement Agreement. (Id.) Olean, in fact, is a named plaintiff in one of more than fifty antitrust actions filed against Bumble Bee Foods, LLC; Tri Marine International, Inc.; Tri-Union Seafoods, LLC (doing business as Chicken of the Sea International); Tri-Union s sister company, King Oscar, Inc.; and StarKist (the Packaged Seafood Products cases or PSP cases ). (Id.) Olean s counsel specifically requested that the release language be clarified to exclude from its reach wholesale purchasers of StarKist products (the Resellers ), who purchased StarKist products for purposes of resale and not for their own consumption. (Id.) Counsel for StarKist thereafter conferred with counsel for Plaintiff in this case and reached agreement on a stipulated amendment to the Settlement Agreement (entered into pursuant to Paragraph. of the Settlement Agreement) to revise the scope of the Release to address Olean s concerns. (Id..) In addition, counsel for Plaintiff in this case and StarKist agreed to certain further changes to the Settlement Agreement release language, documented in the Amended Release, which address objections made by counsel for other named plaintiffs in the PSP cases. (Id. ; see Hawk Decl., Ex. A.) The Amended Release, marked below to show changes from the original Release in the Settlement Agreement, states: Release by Settlement Class Members. Effective as of the Final Settlement Approval Date, each and all of the Settlement Class Members (except any such person who has filed a proper and timely request for exclusion) and any person or entity that purchased StarKist Products for purposes of resale or commercial food preparation and not for his/her/its own consumption (i.e., Resellers )) shall release and forever discharge, and shall be forever barred from asserting, instituting, or maintaining against any or all of the Released Persons, any and all SILICON VALLEY NO. :-CV-00-HSG

7 Case :-cv-00-hsg Document Filed // Page of 0 0 claims, demands, actions, causes of action, lawsuits, arbitrations, damages, or liabilities whether legal, equitable, or otherwise, relating in any way to the claims asserted or the factual allegations made in the Action, including without limitation the alleged under-filling of the StarKist Products and/or the purchase of any of the StarKist Products at any time on or after February, 00 and prior to November, 0 (collectively, the Claims ). For avoidance of doubt, this paragraph does not release any Claims under federal antitrust, state antitrust, state unfair competition or state consumer protection laws, except to the extent any such Claims under federal antitrust, state antitrust, state unfair competition or state consumer protection laws are based on allegations of under-filling of StarKist Products, which are released pursuant to this paragraph. With respect to the Claims released pursuant to this paragraph, each Settlement Class Member shall be deemed to have waived and relinquished, to the fullest extent permitted by law, the provisions, rights and benefits of California Civil Code section (and equivalent, comparable, or analogous provisions of the laws of the United States of America or any state or territory thereof, or of the common law or civil law). Section provides that: A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR. Each and every term of this paragraph shall inure to the benefit of each and all of the Released Persons, and each and all of their respective successors and personal representatives, which persons and entities are intended to be beneficiaries of this paragraph. For avoidance of doubt, this Release of Claims does not release any claims of Resellers of StarKist Products. The Amended Release effects changes to the scope of the Release that should resolve any concerns about vagueness or over breadth. First, the amendment eliminates the language that certain Objectors identified as making the Release overbroad i.e., and/or the purchase of any of the StarKist Products. Second, the Amended Release excludes Resellers and commercial food prepar[ers], which means that it only releases the claims of Settlement Class Members who purchased canned tuna for their own consumption. These latter class members, who are included within the scope of the Release and presumably would be included among members of the putative indirect purchaser consumer class in the PSP cases, are being compensated through this Settlement for the alleged under-filling that was the focus of the Hendricks Complaint and this litigation. Per the Amended Release, these indirect purchaser consumer plaintiffs cannot bring any additional claims for under-filling, but they can still bring claims for any alleged injury, including antitrust injury, that they suffered that is not related to under-filling. SILICON VALLEY NO. :-CV-00-HSG

8 Case :-cv-00-hsg Document Filed // Page of 0 0 B. Objections On November 0, 0, four PSP indirect purchaser consumer plaintiffs filed objections to the Settlement in this case. SILICON VALLEY (See Hendricks Mem. in Supp. of Objs. to Final Approval of Class Action Settlement ( Gore Objs. ), ECF No. ; see also Hendricks Obj. to Proposed Settlement ( Twitchell Obj. ), ECF No..) Objecting PSP Plaintiffs object to the scope of the original Release and also take issue with language now incorporated into the Amended Release. (Gore Objs. at -; see also Hendricks Decl. of Kimberly A. Kralowec in Supp. of Gore Objs. ( Kralowec Decl. ) ; Twitchell Obj. at ; Bauer Decl..) In the Gore Objections, PSP Plaintiffs speculate regarding a possible overarching conspiracy between StarKist and its major competitors for price-fixing or other anticompetitive conduct that may encompass under-filling cans of tuna. (Gore Objs. at.) Counsel for Objecting PSP Plaintiffs Gore and Moore admits that their objections to the Amended Release are motivated by the desire to bring claims based on the same alleged under-filling conduct by StarKist as was litigated in this case, with only the addition of whether that alleged conduct also involved Bumble Bee and Tri-Union. (Kralowec Decl. ( Our proposed modification... made [it] clear that claims based on a conspiracy, as opposed to claims based on unilateral conduct by StarKist, would not be released. )) She further acknowledges that the time frame of the alleged conduct in this case and the PSP cases substantially overlaps. (Id. ) ( There is a significant, five-year overlap between the Hendricks class period and the class periods alleged in Six plaintiffs in the following PSP cases filed objections to the Hendricks settlement agreement ( PSP Plaintiffs ): Moore v. Bumble Bee Foods LLC, et al., No. :-cv-0 (S.D. Cal.); Colberg v. Bumble Bee Foods LLC et al., No. :-cv-00 (S.D. Cal.); Gore v. Bumble Bee Foods LLC et al., No. -cv-0 (S.D. Cal.); LesGo Personal Chef LLC v. Bumble Bee Foods LLC et al., No. :-cv-00 (N.D. Fla.); Machen v. Bumble Bee Foods LLC et al., No. :-cv- 00 (E.D. Ark.). PSP Plaintiffs LesGo and Machen subsequently informed counsel for StarKist that they intend to withdraw their objections in light of the Amended Release. (Decl. of Ashley M. Bauer ( Bauer Decl. ).) Counsel for the remaining individual Objecting PSP Plaintiffs represent numerous other indirect purchaser consumer plaintiffs in PSP cases. See, e.g., Davis Mathews v. Bumble Bee Foods LLC et al., No. :-cv-0 (S.D. Cal.); Hudson v. Bumble Bee Foods LLC et al., No. :-cv-0 (S.D. Cal.); Willoughby III v. Bumble Bee Foods LLC et al., No. :-cv-00 (S.D. Cal.); Canterbury v. Bumble Bee Foods LLC et al., No. :-cv-0 (S.D. Cal.); Bowman v. Bumble Bee Foods LLC et al., No. :-cv-0 (S.D. Cal.); Blumstein v. Bumble Bee Foods LLC et al., No. :-cv-0 (S.D. Cal.); Dravid v. Bumble Bee Foods LLC et al., No. :-cv-0 (S.D. Cal.); Cooper et al. v. Bumble Bee Foods LLC et al., No. :-cv- (S.D. Cal.); Lybarger v. Bumble Bee Foods LLC et al., No. :-cv- (S.D. Cal.); Nelson et al. v. Bumble Bee Foods LLC et al., No. :-cv-0 (S.D. Cal.). NO. :-CV-00-HSG

9 Case :-cv-00-hsg Document Filed // Page of 0 0 [PSP]. )) Indeed, Moore and Gore s counsel was sufficiently concerned that this litigation involved factual issues common to PSP that she repeatedly requested production of the discovery record in Hendricks. (Id..) Counsel for Moore and Gore has already filed PSP complaints on behalf of Gore and other indirect purchaser consumer plaintiffs that include allegations related to the Hendricks Complaint and the claims that are being released in this Settlement. Gore v. Bumble Bee Foods LLC et al., No. :-cv-0 (S.D. Cal.); Davis Mathews v. Bumble Bee Foods LLC et al., No. :-cv-0 (S.D. Cal.). Because there is no factual support for an alleged under-filling conspiracy, the Gore and Davis Mathews complaints allege that there were supposedly opportunities for collusion arising from the PSP Defendants petition for government redress regarding filling standards, as well as in connection with a joint defense agreement in connection with this litigation. (Gore Compl. -, ECF No. ; Davis Mathews First Am. Compl. -, ECF No..) The Gore and Davis Mathews complaints also specifically identify a former StarKist employee (Brett Butler) who subsequently worked for a different PSP Defendant and who was deposed in the Hendricks litigation, as supposed evidence of interlocking relationships and opportunities to collude among the PSP Defendants. (Gore Compl. ; Davis Mathews First Am. Compl. ; see also Hendricks Pl. s Mot. to Compel, ECF No..) These allegations demonstrate that some of the PSP Plaintiffs are already seeking to use facts related to the issues in Hendricks to support their conspiracy claims in PSP. Objecting PSP Plaintiff Twitchell objects to the original release language as overbroad. (Twitchell Obj. at.) Her objections do not take into consideration, however, the changes to the settlement release given effect in the Amended Release. SILICON VALLEY Counsel for Twitchell has stated that the original Release would release even claims wholly unrelated to the Hendricks action, for PSP Plaintiffs are not entitled to the Hendricks discovery. Where, as here, competent class counsel aggressively litigated the claims, and the settlement was the product of a fair, reasonable and arm s length negotiation, courts routinely reject discovery requests by class members. See, e.g., Jaffe v. Morgan Stanley & Co., Inc., No. C 0-0, 00 WL at * (N.D. Cal. Feb., 00). Counsel for Twitchell did not contact counsel for StarKist prior to filing her objections. (Bauer Decl..) Counsel for StarKist contacted Twitchell s counsel on November 0, 0, after the Twitchell Objections were filed and proposed the Amended Release language. (Id..) Counsel for Twitchell then rejected the Amended Release. (Id.) NO. :-CV-00-HSG

10 Case :-cv-00-hsg Document Filed // Page 0 of 0 0 example... antitrust clams. (Id.) (emphasis added). Counsel for Twitchell recently told the Judicial Panel on Multidistrict Litigation (the Panel ) that the claims in the Hendricks action are unrelated to the claims alleged in the [PSP cases] and should be litigated independently. (PSP Pls. Nelson, Davis-Berg, Decker, Childs, Stiller, Vanderlaan, and Millican s Reply to Def. StarKist s Suppl. Resp. to Mot. for Transfer at, MDL No. 0, ECF No..) Counsel for Twitchell also told the Panel that [i]f StarKist s proposed release was crafted not to release the presently alleged claims in the antitrust case having nothing to do with the allegations in the Hendricks case, there would be no issue. (Id.) However, Twitchell s counsel failed to state that StarKist had offered to do just that to craft the release so that it does not release the presently alleged claims in the antitrust cases having nothing to do with the allegations in the Hendricks case. Therefore, in Twitchell s counsel s own words, there should be no issue with the scope of the Amended Release. PSP Plaintiff Twitchell s complaint (like the other complaints filed by her counsel on behalf of other PSP indirect purchaser consumer plaintiffs) does not allege an under-filling conspiracy and is not barred (in its current state) by the Amended Release. Nevertheless, PSP Plaintiff Twitchell refuses to agree to the Amended Release. (Bauer Decl..) Twitchell instead insists on a modification of the original Release that could allow her to bring any conceivable antitrust claims against StarKist, including a duplicative under-filling conspiracy claim for the same alleged injury that Hendricks alleged and that was litigated and resolved in this case. (Twitchell Objs. at.) II. THE COURT SHOULD APPROVE THE SETTLEMENT WITH THE AMENDED RELEASE A. Legal Standard The Ninth Circuit has a strong judicial policy in favor of settlement of class actions. Class Plaintiffs v. City of Seattle, F.d, (th Cir. ). Before a court may approve a class action settlement, it must find that the settlement is fair, reasonable, and adequate. Fed. R. Civ. P. (e)(). A settlement release is fair where it releases claims based on the same facts as the claims settled in the class action. The Ninth Circuit has held that federal district courts SILICON VALLEY NO. :-CV-00-HSG

11 Case :-cv-00-hsg Document Filed // Page of 0 0 properly released claims not alleged in the underlying complaint where those claims depended on the same set of facts as the claims that gave rise to the settlement. Hesse v. Sprint Corp., F.d, 0 (th Cir. 00) (citing Reyn s Pasta Bella, LLC v. Visa USA, Inc., F.d, (th Cir. 00) (affirming dismissal of a class action where plaintiffs posit[ed] a different theory of anti-competitive conduct, but the price-fixing predicate and the underlying injury were identical); see also Class Plaintiffs, F.d at - (affirming approval of a settlement that released claims by an identical class of plaintiffs in a pending case that related to the same set of facts). A settlement agreement may preclude a party from bringing a related claim in the future even though the claim was not presented and might not have been presentable in the class action,... where the released claim is based on the identical factual predicate as that underlying the claims in the settled class action. Hesse, F.d at 0 (quoting Williams v. Boeing Co., F.d 0, (th Cir. 00)); see also Class Plaintiffs, F.d at (same); Howard v. Am. Online Inc., 0 F.d, (th Cir. 000) (same). Courts in this district routinely find that settlements are fair where the scope of the release extends, and is limited, to the facts alleged in the complaint. See Christensen v. Hillyard, Inc., No. -cv-0, 0 WL, at * (N.D. Cal. Aug., 0) (revised settlement agreement acceptable where it limit[ed] released claims to those arising out of the facts alleged in the complaint ); see also In re Hewlett-Packard Co. Shareholder Litig., No. :-cv-000, 0 U.S. Dist. LEXIS, at *, (N.D. Cal. Mar., 0) (revised settlement release acceptable where released claims were based upon the core of the litigation); see also Custom LED, LLC v. ebay, Inc., No. -cv-000, 0 US Dist. LEXIS 0, at * (N.D. Cal. June, 0) (objection denied where settlement release covered all claims arising out of or relating in any way to any of the legal, factual, or other allegations made in the [a]ction, or any legal theories that could have been raised based on the allegations of the [a]ction. ). SILICON VALLEY NO. :-CV-00-HSG

12 Case :-cv-00-hsg Document Filed // Page of 0 0 B. The Amended Release Properly Excludes Antitrust Claims Based on Under-filling From the beginning and through class certification, this has been a case about alleged under-filling. (See, e.g., Hendricks Compl., ECF No. ( Plaintiff Hendricks purchased one or more -ounce cans of StarKist Chunk Light Tuna in Water, which were underfilled and thus substantially underweight. ) (emphasis added); see also Hendricks Mot. for Class Certification at, ECF No. ( Plaintiff alleges StarKist cheated customers by shorting oz. cans of tuna, under-filling them in violation of federal law. ) (emphasis added).) When StarKist settled the claims asserted in this case, StarKist understood and intended that the settlement class would release all claims of injury to class members that had any factual overlap with alleged underfilling. Although PSP antitrust plaintiffs might contend that their claims encompass alleged under-filling (perhaps because they do not have any facts that support their current price-fixing claims), such claims of so-called conspiratorial under-filling are and should be legitimately released by the settlement in this action; they necessarily are based on the same factual predicate concerning fill of the StarKist cans of tuna at issue in this case. For that reason, the Amended Release reflects the appropriate scope of release in this case. The Objectors argue that a settlement is improperly broad where it releases more causes of action than those alleged in a class action complaint. (Gore Objs. at ; Twitchell Obj. at.) Not so. As Objecting PSP Plaintiff Gore s own authority makes clear, it is well-settled in the Ninth Circuit that a settlement release need not slavishly echo the claims in the complaint, so long as the released claim is based on the identical factual predicate as that underlying the claims in the settled class action. Stokes v. Interline Brands, Co., No. -cv-0, 0 WL, at * (N.D. Cal. Nov. 0, 0) (citing Hesse, F.d at 0). The Objectors ask this Court to draw a distinction between the supposed unilateral under-filling in this case and the identical under-filling that they may seek to allege was the result of a supposed conspiracy in the PSP cases. (Gore Objs. at ; Kralowec Decl. ( Our Because the amended language limits the scope of the release, it does not require further notice to the class. Shaffer v. Cont l Cas. Co., F. App x, (th Cir. 00) ( Although changes were made to the release after potential class members received the notice, the changes did not render the notice inadequate because they narrowed the scope of the release. ). SILICON VALLEY NO. :-CV-00-HSG

13 Case :-cv-00-hsg Document Filed // Page of 0 0 proposed modification... made [it] clear that claims based on a conspiracy, as opposed to claims based on unilateral conduct by StarKist, would not be released. )) But they offer neither any logical rationale nor legal authority that supports their position. In fact, other courts have ruled that subsequent antitrust claims can be barred by prior settlements where the prior complaints did not allege an antitrust injury, but the antitrust claims relate to the same underlying facts alleged in the settled action. See, e.g., Kirk Dahl v. Bain Capital Partners, LLC, et al., No. 0-, ECF No. (D. Mass. Nov., 00) (dismissing antitrust claims based on same facts at issue in settled shareholder suits related to alleged securities fraud with respect to specific leveraged buyout transactions); see also Dahl Mem. in Supp. of Certain Defs. Mot. to Dismiss Settled and Released Claims Asserted in the Third Am. Class Action Compl., ECF No. ; Howard, 0 F.d at (holding that RICO predicate acts were released by prior settlement because the plaintiffs were part of the earlier class and asserted claims based on identical facts during the same time period). Here, certain Objecting PSP Plaintiffs have rejected the Amended Release language even though it specifically allows them to pursue all antitrust claims based on factual allegations (e.g., price-fixing) that are different than those that StarKist already vigorously litigated in this case namely, alleged under-filling by StarKist. The Amended Release plainly satisfies the Ninth Circuit standard by limiting the release to any and all claims, demands, actions, causes of action, lawsuits, arbitrations, damages, or liabilities whether legal, equitable, or otherwise, relating in any way to the claims asserted or the factual allegations made in the Action, including without limitation the alleged under-filling of the StarKist Products at any time on or after February, 00 and prior to November, 0. The cases cited in the Gore Objections are inapposite. In some cases, the proposed release did not appropriately track the factual allegations in the complaints. See, e.g., Boyd v. Avanquest N. Am., Inc., No. -cv-0, 0 WL, at *- (N.D. Cal. July, 0); Stokes, 0 WL, at *. In others, the claims at issue were FLSA employment law claims, which require class members to opt-in, and therefore releases of future claims based on the same set of facts were inappropriate for settlements in those cases. Daniels v. Aeropostale W., Inc., No. - 0, 0 WL 0 (N.D. Cal. May, 0); Tijero v. Aaron Bros., Inc., No. 0-00, 0 WL 0, at * (N.D. Cal. Jan., 0). SILICON VALLEY NO. :-CV-00-HSG

14 Case :-cv-00-hsg Document Filed // Page of 0 It is clear that Objecting PSP Plaintiffs core grievance regarding the Amended Release is that it precludes them from recovering twice for the same alleged under-filling. They would have a release in this case that would permit them to recover for under-filling under the Hendricks settlement, but then turn around and get additional damages in the PSP cases as a result of the same alleged under-filling (including pursuant to the exact same California Business & Professions Code, Section 00). Such re-litigation and double recovery is unfair and impermissible. StarKist has vigorously litigated Plaintiffs claims in this case and negotiated an arm s-length settlement after extensive discovery and class certification briefing. The Amended Release comfortably meets the Ninth Circuit s requirements. It safeguards settlement class members rights while also protecting StarKist s interest in final resolution of claims related to allegations of under-filling. For the foregoing reasons, StarKist respectfully requests that the Court grant final approval to the settlement in this action. Dated: December, 0 ECKERT SEAMANS CHERIN & MELLOTT, LLC 0 By: /s/ Robert B. Hawk Robert B. Hawk Attorneys for Defendant STARKIST CO. SILICON VALLEY 0 NO. :-CV-00-HSG