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

Filing 708

ORDER GRANTING PRELIMINARY APPROVAL OF CLASS SETTLEMENT granting (828) Motion in case 4:10-md-02186-BLW-CWD; (701) Motion in case 4:10-cv-00307-BLW-CWD; (352) 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)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

IN RE: FRESH AND PROCESS
POTATOES ANTITRUST LITIGATION

Case No. 4:10-MD-2186-BLW

THIS DOCUMENT APPLIES TO:
ALL INDIRECT PURCHASER ACTIONS

ORDER GRANTING PRELIMINARY APPROVAL OF CLASS SETTLEMENT

This matter comes before the Court upon Indirect Purchaser Plaintiffs’ (“IPPs”) Motion
for Preliminary Approval of Class Action Settlement. The Parties have entered into a Settlement
(the “Settlement Agreement”) which, if approved, would resolve these coordinated indirect
purchaser class action lawsuits. Upon review and consideration of the motion papers and the
Settlement Agreement, and all exhibits, including the proposed forms of notice to the Classes
and the proposed Claim Form, the Court finds that there is a sufficient basis for: (1) provisionally
certifying the Classes for settlement purposes only and appointing Class Counsel and Plaintiffs
to represent the Classes; (2) granting preliminary approval of the Settlement; (3) approving the
proposed notice program as complying with due process and Rule 23; (4) approving the
proposed plan of allocation and proposed claim form; and (5) setting a hearing (the “Final
Approval” hearing), at which the Court will consider: (a) whether to grant final approval of the
Settlement; (b) Class Counsel’s application for attorneys’ fees and costs; and (c) any request for
service awards for the Class Representatives.

IT IS HEREBY ORDERED, ADJUDGED, AND DECREED THAT:
1. The Court has jurisdiction over the subject matter of this litigation, and all actions
within this litigation and over the parties to the Settlement Agreement, including all members of
the IPP Classes, the Plaintiffs and Defendants, and any person or entity claiming by, for, or
through the settling parties with regard to the Released Claims.
2. This Order of Preliminary Approval incorporates the Settlement Agreement. The
terms used in this Order shall have the meanings and/or definitions given to them in the
Settlement Agreement, as submitted to the Court with IPPs’ Motion for Preliminary Approval of
Class Settlement.
3. This action is provisionally certified as a class action, for the purposes of
settlement only, pursuant to Federal Rule of Civil Procedure 23(a), 23(b)(2), 23(b)(3), and 23(e).
The Classes are defined as follows:
Injunction Class: All individuals and entities who purchased fresh potatoes from
retailers in Arizona, California, Florida, Iowa, Kansas, Massachusetts, Michigan,
Minnesota, Nevada, New York, North Carolina, Tennessee, Vermont, and Wisconsin
for end use and not for resale, between October 14, 2004 and April 10, 2015.
Monetary Relief Class: All individuals and entities who purchased fresh potatoes
from retailers in Arizona, California, Florida, Iowa, Kansas, Massachusetts, Michigan,
Minnesota, Nevada, New York, North Carolina, Tennessee, Vermont, and Wisconsin
for end use and not for resale, between October 14, 2004 and April 10, 2015.
Excluded from each Class are Defendants, their alleged co-conspirators, all present or former
parents, predecessors, subsidiaries or affiliates of Defendants, all governmental entities, and any
judicial officer to whom this case is assigned.
4. For purposes of settlement and on the basis of the entire record before the Court, the
Court finds that the Classes fully comply with the requirements of Federal Rule of Civil
Procedure 23. Specifically, the Court finds: (1) the Classes are so numerous that joinder of all

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members is impracticable; (2) there are questions of law or fact common to the Classes; (3) the
claims or defenses of the representative parties are typical of the claims or defenses of the
Classes; and (4) the representative parties will fairly and adequately protect the interests of the
Classes. Additionally, for purposes of settlement, the Court finds that the Defendants “acted or
refused to act on grounds generally applicable to the class, thereby making appropriate final
injunctive relief or corresponding declaratory relief with respect to the class as a whole.” See
Fed. R. Civ. P. 23(b)(2). Federal Rule of Civil Procedure 23(b)(3) is also met and there are
questions of law or fact common to class members which predominate over any questions
affecting only individual members. Additionally, a class action is superior to other available
methods for fairly and efficiently adjudicating the controversy.
5. Certification of the Classes shall be solely for settlement purposes and without
prejudice to the Parties in the event the Settlement is not finally approved by this Court or
otherwise does not take effect.
6. Without prejudice to Final Approval, the Settlement is preliminarily approved as
being within the range of reasonableness. The Court specifically finds that the Settlement
resulted from serious and informed arms-length negotiations, provides meaningful relief to the
Classes, and is not preferential to the class representatives or segments of the Classes.
7. The Settlement is sufficient to warrant dissemination of Notice of the Settlement and
of the Final Approval hearing to the Settlement Classes.
8. The Court finds that Plaintiffs Jonathan Rizzo; Trang Nguyen; Kelly Tschantz; John
Brashears; Jeffrey Keel; Crystal Tschantz; Gary Tschantz; BreAnne Krabbenhoft; Paul Langer;
Kory Pentland; Abigail Rizzo; Julie Ewald; Brendan Farrell; Robert Finch; Benedetto
DiLorenzo; Suzy Ivey McCrory; Jeff Potvin; Navtej Bhandari; and Joyce Rizzo have fairly and

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adequately represented the interests of the Classes and satisfy the requirements to be Class
Representatives.
9. Pursuant to Federal Rule of Civil Procedure 23(g), Milberg LLP and Glancy Prongay
& Murray LLP, previously appointed by the Court as Interim Class Counsel for IPPs, are
appointed Class Counsel. These firms have, and will, fairly and competently represent the
interests of the IPP Classes.
10. A Final Approval hearing shall be held on December 3, 2015 at 3:30 p.m., before the
Honorable B. Lynn Winmill in Courtroom 3 of the United States District Court for the District of
Idaho, located in Boise, ID. At the Final Approval hearing, the Court will consider:
a. the fairness, reasonableness, and adequacy of the Proposed Settlement,
including timely objections, if any;
b. whether the Court should grant its final approval to the Settlement;
c.

the application of Class Counsel for an award of attorneys’ fees and
expenses;

d. the application of service awards to the Class Representatives; and
e. such other matters as the Court may deem proper and necessary.
11. The Court approves KKC as the Claims Administrator and authorizes Kurtzman
Carson Consultants (“KCC”) to perform the duties set for in the Settlement Agreement regarding
settlement administration.
12. The Notices of Proposed Class Action Settlement and Claim Form are attached to the
Declaration of Daniel Rosenthal in Support of Indirect Purchaser Plaintiffs’ Settlement Notice
Plan as Exhibits 1, 2, and 4, respectively. The Class Notices and Claim Form are approved in
substantially the same form for the purpose of notifying the Classes about the proposed

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Settlement, the nature of the claims and releases at issue, the rights of Class Members, and the
Final Approval hearing. The Court finds that it is the best notice practicable, and is reasonably
calculated to inform Class Members about the nature and principal terms of the litigation and the
Settlement Agreement, including the injunctive and monetary relief the Settlement will provide
to members of the class, the procedures and deadlines for opting out or submitting objections to
the Settlement, the consequences of acting or failing to act on the available options, and the date,
time, and place of the Final Approval Hearing. In addition, the Class Notice is sufficient to
inform Class Members of IPPs’ application for attorneys’ fees and expenses, and IPPs’
application for service awards to the Class Representatives.
13. The Class Notice period shall commence on July 2, 2015. The Claims Administrator
shall cause the Notices to be published in accordance with the proposed Notice Program stated in
the Declaration of Daniel Rosenthal. Class Counsel is authorized to withdraw the costs and
expenses associated with the dissemination of Class Notice and the fees of the Claims
Administrator from the Settlement Fund, consistent with the parties’ agreement.
14. In connection with IPPs’ filing of their Motion for Final Approval, the Claims
Administrator shall provide a declaration for the Court, copying Class Counsel, attesting to the
measures undertaken to provide Class Notice.
15. Settlement Class Members who intend to object to the fairness, reasonableness, and
adequacy of the Settlement must send a letter to the Claims Administrator containing the
objections to the proposed Settlement. Objections must be postmarked no later than October 16,
2015 to the following address: Potatoes Antitrust Case Claims Administrator, c/o KCC Class
Action Services, ATTN: Indirect Purchaser Exclusion/Objection, 75 Rowland Way, Suite 250,
Novato, CA 94945. The letter must include:


The Class Member’s name, address, and telephone number; 

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

A statement saying that there is an objection to the settlement in In re Fresh and Process
Potatoes Antitrust Litigation, D. Idaho Case No. 4:10-MD-2186-BLW;



A statement that fresh potatoes were purchased from a retailer in one of the Class
Jurisdictions between October 14, 2004 and April 10, 2015;



A detailed statement of objections, including the grounds for your objections, together with
any supporting documents;



The name, address, and telephone number of any lawyer assisting the objector;



A “Notice of Intent to Appear” if the Class Member or the Class Member’s attorney intends
to appear at the Fairness Hearing; and



The Class Member’ signature.

16. Class Members with who wish to appear at the Final Approval hearing must submit a
writing stating that it is his or her “Notice of Intent to Appear in In re Fresh and Process
Potatoes Antitrust Litigation, MDL No. 2186.” The written request must include the Class
Member’s name, address, telephone number, and signature. A Notice of Intent to Appear must
be postmarked no later than October 16, 2015 and must be sent to:
Potatoes Antitrust Case Claims Administrator,
c/o KCC Class Action Services,
ATTN: Indirect Purchaser Exclusion/Objection,
75 Rowland Way, Suite 250,
Novato, CA 94945
17. Settlement Class Members may elect to exclude themselves from the Settlement
Agreement, relinquishing their rights to any and all benefits under the Settlement Agreement.
Settlement Class members who exclude themselves from the Settlement will not release their
claims pursuant to the Release set forth in the Settlement Agreement. A Settlement Class
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member wishing to exclude himself or herself from the Settlement must fully comply with all
terms and conditions set forth in the Class Notice. Any request for exclusion must be in writing
and postmarked no later than October 16, 2015 and sent to the Potatoes Antitrust Case Claims
Administrator at the address in Paragraph 16. The request for exclusion must state:


The Class Member’s name, address, and telephone number;



A statement that the Class Member wants to be excluded from the Settlement Class(es);
and



The Class Member’s signature.

Any Settlement Class Member who fails to submit a valid and timely request for exclusion shall
be bound by all terms of the Settlement Agreement and the Final Order of Judgment.
18. Any Settlement Class Member who submits a timely request for exclusion may not
file an Objection to the Settlement and shall be deemed to have waiver any rights or benefits
under the Settlement Agreement.
19.

The Court will hold a Final Approval hearing on December 3, 2015 at 3:30 p.m..

Class Counsel shall file their Application for Attorney’s Fees and Costs and Service Awards for
Class Representatives by August 28, 2015. Class Counsel shall file their Motions for Final
Approval and all supporting papers by November 27, 2015.
20. If the Court declines to approve the Settlement Agreement or if such approval is
modified or set aside on appeal, or if the Court does not enter Final Judgment as provided for in
the Settlement Agreement, or if the Court enters the Final Judgment and appellate review is
sought and, on such review, the Final Judgment is not affirmed, then each party has, in its sole
discretion, the option to rescind the Settlement Agreement within ten (10) business days of the
action giving rise to such option.

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21. For the benefit of the Settlement Classes and to protect the Court’s jurisdiction, the
Court retains continuing jurisdiction over the Settlement proceedings to ensure their effectuation.
22. The parties are directed to carry out their obligations under the Settlement
Agreement.

IT IS SO ORDERED.

DATED: June 17, 2015

_________________________
B. Lynn Winmill
Chief Judge
United States District Court

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