Tuesday, August 26, 2008

When $24 million just isn't enough...

There was an article in today's USA Today about the class action settlement in the pet food recall case. Not sure why they ran the story today - even the article points out that the final approval hearing isn't scheduled until October and the claims period doesn't run until November - but it got me to thinking about the settlement again.

Just in case you missed my earlier post on the subject, I found the settlement disappointing when it was first announced. And I still do. Why, you ask? Isn't $24M enough? What sort of extremist nut job am I, anyway?

Well, here's why. Class members' recoveries are circumscribed in two very important regards that (once again) reflect traditional biases against recognizing the value of non-human animals. First, documented expenses such as veterinary bills and burial costs are 100% reimbursable - for those expenses deemed reasonable. Apart from the obvious question of who gets to be the deem-meister... how do you determine what's reasonable?

If someone spent $10,000 in doctor bills trying to save their child, no one would question it. In fact, that person might get into a lot of trouble if they didn't do whatever they possibly could to save a child. (And not that children aren't worth saving - no irate emails please - I have a kid too.) But what about when someone spends the same on a non-human? Some think it's a waste to spend that much on a cat. But others view it as spending money to save a family member - and would do it all over again if the situation arose.

I myself fall squarely into the second camp, and have, in fact, purchased the equivalent of a Dodge Neon in veterinary care. I don't particularly think I'm a nut job and moreover, it's my money. As far as I'm concerned, I never understood what other people see in Neons.

By contrast, undocumented expenses are compensable up to $900. Now that seems fair to me, since presumably a claimant would be unable to prove he or she even spent a penny. Although it does seem a little odd in juxtaposition to the other provision; you can have up to $900 without proving you spent anything, but they may not reimburse you for all you can prove you spent, just because they don't think you spent your money reasonably.

Regardless, the second - and imho - more fundamental flaw in the settlement is that it does not permit recover for any non-economic damage - no pain and suffering, no loss of companionship, nothing. What a shame. Because that's really where one of the forefronts in animal law lies.

$24M may seem like a lot of money, but the only damages that are compensable here are the ones that have traditionally been compensable anyway. Don't get me wrong, I am a big believer in the theory behind the class action. I think individual consumers need to have a way to aggregate damages in order to fight big corporations. But once again - imho - the mechanism has failed the consumer. The defendant corporation wins because it resolves all claims in the most expedient manner possible. The plaintiff attorneys certainly win ($8M! Ca-CHING!). But the consumer? If you loved your dog, you're not thinking about $1,000 emergency room visit or the $150 cremation cost. You're thinking about not having anyone to go on walks with anymore. The fact that no one even has to acknowledge that this is your real loss is like being victimized twice.

This case is one of the great, missed opportunities in the animal law field. I hope that no tragedy of this magnitude strikes again. But if it does, I hope more fervently that animal law attorneys can figure out a way to band together and generate enough funding to be able to take a seat at the class action table and really roll the dice.

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