Brigiotta's Farmland Produce and Garden Center, Inc. v. United Potato Growers of Idaho, Inc. et al

Filing 707

ORDER (1) GRANTING PRELIMINARY APPROVAL OF PROPOSED SETTLEMENT AGREEMENT BETWEEN DIRECT PURCHASER PLAINTIFFS AND ALL DEFENDANTS (2) CERTIFYING THE SETTLEMENT CLASSES & APPOINTING SETTLEMENT CLASS COUNSEL AND EXECUTIVE COMMITTEE; AND (3) APPROVING THE NOTICE PLAN AND FORM OF NOTICE AND DIRECTINGNOTICE TO THE CLASSES granting (829) Motion in case 4:10-md-02186-BLW-CWD;(702) Motion in case 4:10-cv-00307-BLW-CWD; (353) Motion in case 4:13-cv-00251-BLW-CWD. Signed by Judge B. Lynn Winmill. Associated Cases: 4:10-md-02186-BLW-CWD, 4:10-cv-00307-BLW-CWD, 4:13-cv-00251-BLW-CWD(caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjs)

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO
EASTERN DIVISION

IN RE: FRESH AND PROCESS POTATOES
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ANTITRUST LITIGATION
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________________________________________ )
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THIS DOCUMENT RELATES TO:
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Direct Purchaser Action
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_________________________________________ )

Civil Case No. 4:10-md-02186 BLW

ORDER (1) GRANTING PRELIMINARY APPROVAL OF PROPOSED SETTLEMENT
AGREEMENT BETWEEN DIRECT PURCHASER PLAINTIFFS AND ALL
DEFENDANTS
(2) CERTIFYING THE SETTLEMENT CLASSES & APPOINTING SETTLEMENT
CLASS COUNSEL AND EXECUTIVE COMMITTEE;
AND
(3) APPROVING THE NOTICE PLAN AND FORM OF NOTICE AND DIRECTING
NOTICE TO THE CLASSES

Based on the Court’s review of the proposed Settlement Agreement Between Direct
Purchaser Plaintiffs (“DPPs”) and Defendants and DPP’ Motion for Preliminary Approval of the
Settlement Agreement and supporting papers, the Court finds as follows:
Preliminary Approval of Settlement Agreement
1.

The motion of Direct Purchaser Plaintiffs for preliminary approval of the

proposed settlement with all Defendants, which Defendants do not oppose, is hereby
GRANTED.
2.

The Court finds that the proposed settlement, as set forth in the Settlement

Agreement, subject to final determination following implementation of the plan for notice
described below and a fairness hearing, falls within the range of possible approval and is
sufficiently fair, reasonable and adequate to the Settlement Classes certified, as provided below,
for settlement purposes only.

3.

If they have not done so by the date of this Order, Defendants shall immediately

serve upon the appropriate federal and state officials notice of the proposed Settlement
Agreement and all other required papers and information in accordance with 28 U.S.C. § 1715.
Defendants shall file with the Court Notice of Compliance with 28 U.S.C. § 1715 when all
appropriate notices have been served.
Certification of the Settlement Classes:
4.

The Court certifies for settlement purposes only the following Settlement Classes:
a. Direct Purchaser Plaintiff Monetary Relief Class:
All persons and entities who, between June 18, 2006 and the date on
which the Court enters an order preliminarily approving the Settlement
and certifying the Class for settlement purposes, directly purchased
Fresh Potatoes grown in the United States, other than Specialty
Potatoes, from:
(1) any Defendant or any parent, subsidiary or affiliate thereof; (2) any
member of the cooperative members of United Potato Growers of
America, or any parent, subsidiary or affiliate thereof and any member
of the United Potato Growers of Idaho, Inc., or any parent, subsidiary,
or affiliate thereof; and (3) any entity that packed or marketed fresh
potatoes grown by any Defendant, by any member of United Potato
Growers of Idaho, Inc., or by any member of the cooperative members
of United Potato Growers of America.
b. Direct Purchaser Plaintiff Injunctive Relief Class
All persons and entities who, between June 18, 2006 and the date on
which the Court enters an order preliminarily approving the Settlement
and certifying the Class for settlement purposes, directly purchased
Fresh Potatoes grown in the United States, other than Specialty
Potatoes, from:
(1) any Defendant or any parent, subsidiary or affiliate thereof; (2) any
member of the cooperative members of United Potato Growers of
America, or any parent, subsidiary or affiliate thereof; and any
member of the United Potato Growers of Idaho, Inc., or any parent,
subsidiary, or affiliate thereof; and (3) any entity that packed or
marketed fresh potatoes grown by any Defendant, by any member of
United Potato Growers of Idaho, Inc., or by any member of the
cooperative members of United Potato Growers of America, Inc.

c. Excluded from these Classes are Defendants and their Co-Conspirators,
including, but not limited to, any member of United Potato Growers of Idaho,
Inc. and United II, the members of the United Potato Growers of America,
Inc., and any member of the cooperative members of United Potato Growers
of America, Inc., and their respective subsidiaries, affiliates and members; any
entity that packed or marketed fresh potatoes grown by any Defendant, by any
member of United Potato Growers of Idaho, Inc., any member of United II
Potato Growers of Idaho, Inc., and by any member of the cooperative
members of United Potato Growers of America, Inc., and their respective
parents, subsidiaries, affiliates and members; and any governmental entities.
5.

For purposes of settlement and on the basis of the entire record before the Court,

the Court finds that the Settlement Class fully complies with the requirements of Federal Rule of
Civil Procedure 23. Specifically, the Court finds: (1) the Settlement Class is so numerous that
joinder of all members is impracticable; (2) there are questions of law or fact common to the
Settlement Classes; (3) the claims or defenses of the representative parties are typical of the
claims or defenses of the Settlement Classes; and (4) the representative parties will fairly and
adequately protect the interests of the class. Additionally, for purposes of settlement, the Court
finds that Federal Rule of Civil Procedure 23(b)(3) is also met and that there are questions of law
or fact common to class members which predominate over any questions affecting only
individual members, and that a class action is superior to other available methods for fairly and
efficiently adjudicating the controversy.
6.

The Court appoints the law firm Hausfeld LLP as Settlement Class Counsel, and

appoints the following law firms as the Settlement Executive Committee:
a.

Bernstein Liebhard LLP, 10 East 40th Street | New York, NY 10016;

b.

Freed Kanner London & Millen, 2201 Waukegan Road, Suite 130,

Bannockburn, IL 60015;
c.

The Kralowec Law Group, 188 The Embarcadero, Suite 800, San

Francisco, CA 94105;

d.

Labaton Sucharow LLP, 140 Broadway, New York, NY 10005;

e.

Pearson Simon Warshaw Penny, LLP, 15165 Ventura Boulevard, Suite

400, Sherman Oaks, CA 91403;
f.

Robbins Geller Rudman & Dowd LLP, 655 West Broadway, Suite 1900,

San Diego, CA 92101;
g.

Spector Roseman Kodroff & Willis, P.C., 1818 Market Street, Suite 2500,

Philadelphia, Pennsylvania 19103;
h.

Steyer Lowenthal Boodrookas Alvarez & Smith LLP, One California

Street, Third Floor, San Francisco, CA 94111; and
i.

Weinstein Kitchenoff & Asher LLC, 1845 Walnut Street, Suite 1100,

Philadelphia, PA 19103.
7. The Court appoints Kurtzman Carson Consultants (“KCC”) as the Settlement Claims
Administrator and is approved to implement the Notice Plan and to administer claims under the
Settlement Agreement.
8. The Court appoints Brigiotta’s Farmland Produce and Garden Center, Inc. and J.R.
Mazzola, Inc. as Representatives of the Settlement Classes.
Notice Plan and Form of Notice:
8. The proposed plan for and manner of dissemination of Notice and the forms of Notice
of the Settlement Agreement between Direct Purchaser Plaintiffs and Defendants, supported by
the work of a notice expert, are hereby APPROVED:
a.

The Notice Plan proposed by Direct Purchaser Plaintiffs and described herein,

which includes Direct Mail Notice, Publication Notice, internet promotional activities, a
website, and a toll-free hotline, is “the best notice that is practicable under the

circumstances” and is “reasonable” as required by Fed. R. Civ. P. 23(c)(2)(B) and (e)(2),
and is consistent with constitutional due process
b.

The Notices are clear and concise and employ “plain, easily understood

language,” and include all necessary information as required by Fed. R. Civ. P.
23(c)(2)(B).
9. On or about July 2, 2015, KCC shall send notice and a Claim Form by U.S. First Class
mail, postage prepaid to all individuals and entities who are not excluded from the Settlement
and whose names and addresses were produced by Defendants to KCC (“Direct Mail Notice”)
The Direct Mail Notice and Claim Form shall be in substantially the same format and with
substantially the same content as that attached as Exhibits 2 and 3 to the Declaration of Daniel
Rosenthal (ECF No. 829-7).
10. On or about July 2, 2015, KCC shall send a postcard providing summary notice by
U.S. First Class mail, postage prepaid to all individuals and entities whose names and addresses
were obtained by KCC from purchased mailing lists of potential Settlement Class members as
identified in the Rosenthal Declaration (“Postcard Summary Notice”). The Postcard Summary
Notices shall be in substantially the same format and with substantially the same content as that
attached as Exhibit 4 to Rosenthal Declaration.
11. On or about July 2, 2015, KCC shall issue an informational press release to be
distributed to media outlets identified in Paragraph 18 of the Rosenthal Declaration, which shall
be in substantially the same format and with substantially the same content as that attached as
Exhibit 7 to Rosenthal Declaration.
12. On or about July 2, 2015, KCC shall launch a web site providing information about
this litigation and the Proposed Settlement Agreement, including the Notices and the Settlement
Agreement itself along with other appropriate court documents relating to the Proposed

Settlement, and shall staff a toll-free hotline to respond to inquiries from potential Settlement
Class members.
13. During the period from July 2, 2015 and August 20, 2015, the specific date of
publication to be determined by KCC as publication schedules permit, KCC shall publish notice
(Publication Notice) in substantially the same format as attached to Exhibit 5 of the Rosenthal
Declaration, on one occasion in: The Food Service Director; The Packer; The Produce News;
and Supermarket News.
14. During the period from July 2, 2015 and August 20, 2015 KCC shall cause to be
placed on the web sites of The Packer (www.thepacker.com) and The Produce News
(www.producenews.com) Banner Notices for a period of approximately one month, and shall
cause such Banner Notices to be placed on one occasion in the e-newsletters for The Packer and
The Produce News. The Banner Notices shall be in substantially the same format and with
substantially the same content as that attached as Exhibit 6 to Rosenthal Declaration.
During the period from July 2, 2015 and August 20, 2015, KCC shall purchase selected
keywords relating to this litigation and the Proposed Settlement, as set forth in the Rosenthal
Declaration, from Google, for a period of approximately a month.
15. KCC shall insert the date for the Fairness Hearing set forth in this Order into the
Notices identified above prior to issuance.
16. On or before August 20, 2015, Plaintiffs shall file an affidavit prepared by KCC that
details the process engaged in by KCC to effect the Notice Plan, and confirms that the
requirements regarding Direct Mail Notice, Summary Postcard Notice, Publication Notice,
Banner Notice, the website, and the toll-free hotline have been carried out in accordance with
this Order.

17.

KCC shall cause to be posted on www.potatoesantitrustsettlement.com Plaintiffs’

Motion for Attorneys’ Fees and Costs and Incentive Awards upon filing by Plaintiffs.
Significant Dates
In accordance with this Court’s Order dated May 21, 2015 (ECF No. 821) the following
deadlines apply:
18. Requests for Exclusion from the Proposed Settlement: Requests for exclusion
from the Proposed Settlement must be sent to KCC via first-class mail postmarked or hand
delivered on or before October 16, 2015.
19. Objections to the Proposed Settlement: Objections to the Proposed Settlement
must be sent to the Court, Class Counsel, and Counsel for Defendants, as provided in the
Notices, via first-class mail postmarked on or before October 16, 2015.
20. Submission of Completed Claim Forms: Claim Forms in the Proposed Settlement
must be first-class mail postmarked, hand delivered, or submitted online at
www.potatoesantitrustsettlement on or before October 16, 2015.
21. Plaintiffs’ Motion for Attorneys’ Fees and Costs and Incentive Awards:
Plaintiffs shall file their motion for Attorneys’ Fees and Costs and for Incentive Awards for
Named Plaintiffs on or before August 28, 2015.
22. Plaintiffs’ Motion for Final Approval: Plaintiffs shall file their motion for Final
Approval of the Settlement Agreement on or before November 27, 2015.
23. Fairness Hearing: The Court will hold a hearing regarding the fairness and
adequacy of the Proposed Settlement Agreement on December 3, 2015 at 3:30 p.m., in
Courtroom 3 of the United States District Court for the District of Idaho, located in Boise, ID.
The date, time, and location of this hearing are subject to change, and Settlement Class members
are advised to check www.potatoesantitrustsettlement.com for any updates.

IT IS SO ORDERED.

DATED: June 17, 2015

_________________________
B. Lynn Winmill
Chief Judge
United States District Court