Allen et al v. Dairy Farmers of America, Inc. et al
ENTRY ORDER denying #2132 Motion to Extend the Period of Time to Opt Out of the December 2015 Settlement. Signed by Chief Judge Christina Reiss on 7/26/2017. (pac)
U.S~ DlS rhiCT C~H.
i*STRiCT OF VE
UNITED STATES DISTRICT COURT
DISTRICT OF VERMONT
ALICE H. ALLEN, et al.,
DAIRY FARMERS OF AMERICA, INC. and
DAIRY MARKETING SERVICES, LLC,
H:n JUL 26 PH 12: 23
Case No. 5:09-cv-230
ENTRY ORDER DENYING THE MOTION
TO EXTEND THE PERIOD TO OPT OUT OF
THE DECEMBER 2015 SETTLEMENT
On June 7, 2016, the court approved a settlement (the "December 2015
Settlement") between Defendants Dairy Farmers of America, Inc. ("DF A") and Dairy
Marketing Services, LLC ("DMS") and the DF A/DMS and non-DF A/DMS subclasses
(collectively, "Plaintiffs" or the "Dairy Farmers Class"). Pending before the court is the
March 1, 2017 motion filed by Andrew and Matthew Toms (the "Toms") (Doc. 2132) to
extend the time period to opt out of the December 2015 Settlement. Defendants oppose
the motion, arguing that it is both untimely and made without justification. The Toms did
not file a reply in support of their motion. The court took the pending motion under
advisement on March 29, 2017.
The Toms are represented by Gary L. Franklin, Esq. Defendants are represented
by Ian P. Carleton, Esq., Margaret M. Zwisler, Esq., Jennifer L. Giordano, Esq., Alfred
C. Pfeiffer, Jr., Esq., and W. Todd Miller, Esq.
Factual and Procedural Background.
In this lawsuit, Plaintiffs alleged that Defendants 1 violated the Sherman Act, 15
U.S.C. §§ 1-2 by conspiring to control the supply of raw Grade A milk in Federal Milk
Market Order 1, which had the effect of suppressing certain premiums paid to dairy
farmers for their milk.
The court certified the Dairy Farmers Class, which consisted of all dairy farmers,
whether individuals, entities, or members of cooperatives, who produced and pooled raw
Grade A milk in Order 1 during any time after January 1, 2002. The Dairy Farmers Class
is comprised of two certified Subclasses:
1. All dairy farmers, whether individuals or entities, who produced and
pooled raw Grade A milk in Order 1 during any time from January 1,
2002 to the present, who are members of DF A or otherwise sell milk
through DMS ("DF A/DMS [S]ubclass"); and
2. All dairy farmers, whether individuals or entities, who produced and
pooled raw Grade A milk in Order 1 during any time from January 1,
2002 to the present, who are not members ofDFA and do not otherwise
sell milk through DMS ("non-DFA/DMS [S]ubclass").
(Doc. 435 at 3-4.)
The December 2015 Settlement.
After the court granted in part and denied in part Defendants' motion for summary
judgment, this case was set for trial. Defendants and Plaintiffs thereafter entered into a
series of settlement agreements which the court rejected until the parties entered into the
December 2015 Settlement, which included an opt-out provision. On February 8, 2016,
the court preliminarily approved the December 2015 Settlement, ordering that:
Any member of the Subclass who did not previously opt out
of a Subclass but wishes to be excluded from the 2015 Settlement
Agreement, may opt out of it by submitting a letter expressing such intent
to the Claims Administrator at least twenty-one (21) days prior to the
Fairness Hearing. This letter must be entitled "Opt-Out Letter." It must
include the date, the caption of this case, as well as the Subclass member's
Defendant DF A is a dairy cooperative that produces, processes, and distributes raw Grade A
milk. Defendant DMS is a milk-marketing agency that was formed in 1999 by DF A and
Dairylea Cooperative, Inc.
name, address, and signature. It must also clearly state that the Subclass
member is opting out of the 2015 Settlement Agreement, with language
such as, "I am opting out of the 2015 Settlement Agreement."
(Doc. 718 at 8-9,
These directions were also reflected in a Notice of Proposed Settlement (the
"Notice") that was subsequently disseminated pursuant to a notice program approved by
the court. The court found that the Notice was:
written in plain language and clearly and conspicuously notiflies] Subclass
members of the nature of the litigation, the definition of the class certified,
the class claims and issues, the contents of the 20 15 Settlement Agreement,
and the class members' rights to object, appear before the court, and be
represented by counsel.
[It] advise[s] Subclass members how they may obtain additional
information, what they must do to exercise their rights, how to opt out of
the 2015 Settlement Agreement, and what will happen if they do nothing.
3-4. Specifically, the Notice advised that Plaintiffs' "legal rights and
options in this settlement" included opting out, in which event a Plaintiff electing to opt
out would "[g]et no payment from the settlement. This is the only option that allows you
to start (or remain part of) any other lawsuit against DF A or DMS about the legal claims
in this case." (Doc. 718-1 at 1.) The Notice also contained the following information in
25. Ifl do not exclude myself, can I sue later?
No. Unless you exclude yourself, you give up the right to sue DF A or
DMS for all of the claims that this proposed settlement resolves and others
that could have been asserted based on the conduct in the Complaint in this
case. You must exclude yourself from the Subclass to start your own
lawsuit, continue with a lawsuit, or be part of any other lawsuit against
DF A or DMS relating to the "Released Claims" described in Section 1.16
of the Settlement Agreement.
!d. at 5.
The court ordered that the Notice be mailed by first class U.S. Mail to all potential
members of the Subclasses whose identities and locations were reasonably ascertainable,
and that it be published as soon as practicable in at least two publications with
circulations that were reasonably likely to reach Subclass members. The court further
ordered that the December 2015 Settlement, the Notice, and its February 8, 2016 Order
be posted on the class action website for this lawsuit maintained by the Claims
Administrator. The same information was also available on the court's docket. After the
approved notice program was effectuated, pursuant to Fed. R. Civ. P. 23 the court held a
fairness hearing on May 13, 20 16 at which class members were entitled to voice their
opinions as to whether the December 2015 Settlement should be approved.
In a June 7, 2016 Opinion and Order, the court granted the parties' motion for
final approval of the December 2015 Settlement (the "June 7, 2016 Opinion and Order").
On August 19, 2016, the court entered an Order Identifying Subclass Exclusions and OptIns, Dismissing the Class Action Claims as to Defendants, Directing Entry of Final
Judgment, and Approving the Settlement Allocation Plan (the "August 19, 2016 Order").
The August 19, 20 16 Order provided in relevant part that:
Any person who timely submitted a request to be excluded
from the class certified for litigation against DFA and DMS in accordance
with the procedures outlined in the Court-approved notice of certification
shall be excluded from the Subclasses, shall not receive any monetary
payments that may result from the December 2015 Settlement, shall not be
bound by any Court orders or jury verdicts in this case, and shall retain
their individual right to sue Defendants on their own regarding the issues in
this case, or not to pursue these legal claims if that is their choice. The
names of farmers who timely submitted a request for exclusion from the
class are listed in Appendix 1 to this Order.
Any person who timely submitted a Request for Exclusion
from the December 2015 Settlement in accordance with the procedures
outlined in the Court-approved notice of settlement shall be excluded from
the Subclasses, shall have no rights with respect to the Settlement, and shall
receive no payments as provided in the Settlement. The names of farmers
who timely submitted a Request for Exclusion are listed in Appendix 2 to
Those Subclass Members who failed to object to the
December 2015 Settlement in accordance with the procedures outlined in
the Court-approved notice are hereby deemed to have waived any
objections to the Settlement or the Settlement Agreement and are barred
from making such objections in the future.
(Doc. 2118 at 3, ~~5-6, 8.) The court "retain[ed] jurisdiction over the implementation,
enforcement, and performance of the December 2015 Settlement," including "exclusive
jurisdiction over any suit, action, proceeding or dispute arising out of or relating to the
Settlement or the applicability of the Settlement Agreement." Id. at 5,
On June 15, 2016, Subclass Representatives Jonathan and Claudia Haar (the
"Haars") filed a Notice of Appeal (Doc. 2098), seeking appellate review of the court's
approval of the December 2015 Settlement. On April 18, 2017, the Second Circuit held
that the court did not err in finding the December 2015 Settlement fair, reasonable, and
adequate under Rule 23. In light of the Second Circuit's decision, Defendants'
contention that the Haars' appeal divested this court of jurisdiction to adjudicate the
pending motion is moot.
The Motion to Extend the Opt-Out Deadline.
In support of their motion, the Toms have submitted substantively identical
affidavits wherein they aver that they operate a dairy farm in Walkersville, Maryland and
are members of the Dairy Farmers Class, although they do not indicate their membership
in a Subclass. They acknowledge that they received notice of the December 2015
Settlement, but do not specifY when or how they received such notice. The Toms
"understood there was a period during which [they] could 'opt-out' of the December
2015 Proposed Settlement[.]" (Doc. 2132-1 at 1, ~ 2; Doc. 2132-2 at 1, ~ 2.) Although
they were "not happy" with the terms of the settlement, they did not consider opting out
to be a "viable option" as they did not believe they would be able to hire counsel to
represent them on an individual basis. !d. at 1, ~ 3.
The Toms further aver that they did not know that other individuals who had opted
out of the December 2015 Settlement had filed an action styled Sitts, et al. v. Dairy
Farmers ofAmerica, Inc., et al., 16-cv-287 (complaint filed Oct. 26, 2016), which is
currently pending in this court (the "Opt-Out Litigation"). They represent that had they
been aware ofthe Opt-Out Litigation, they would have opted out ofthe December 2015
Conclusions of Law and Analysis.
Federal Rule of Civil Procedure 60(b) provides that "[o]n motion and just terms,
the court may relieve a party or its legal representative from a final judgment, order, or
proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable
neglect[.]" Fed. R. Civ. P. 60(b)(l). Because the court has entered final judgment in this
action, the Toms' motion must be evaluated pursuant to Rule 60(b). See Fed. R. Civ. P.
60(b), advisory committee's note to 1946 amendment ("The addition of the qualifying
word 'final' emphasizes the character of the judgments, orders or proceedings from
which Rule 60(b) affords relief[.]").
Rule 60(b) "confers broad discretion on the trial court to grant reliefwhen
appropriate to accomplish justice [and] it constitutes a grand reservoir of equitable power
to do justice in a particular case[.]" Matarese v. LeFevre, 801 F.2d 98, 106 (2d Cir.
1986) (citations and internal quotation marks omitted). "In extraordinary circumstances,
Rule 60(b) may be invoked to override the finality of judgments in the interests of
justice." Andrulonis v. United States, 26 F.3d 1224, 1235 (2d Cir. 1994). However, Rule
60(b) "does not allow district courts to indulge a party's discontent over the effects of its
bargain." !d. (internal quotation marks omitted). Thus, "[a]bsent a violation of due
process or excusable neglect for failure to timely opt out, a class-action settlement
agreement binds all class members who did not do so." In reAm. Express Fin. Advisors
Sec. Litig., 672 F.3d 113, 129 (2d Cir. 2011). The Toms neither dispute that their request
is untimely, nor argue that they were denied due process. Rather, they contend that their
untimely motion is justified by excusable neglect.
"[A] class member seeking permission to opt out late must first demonstrate
'excusable neglect' for his or her failure to comply with a fixed deadline." In re
Painewebber Ltd. P'ships Litig., 147 F.3d 132, 135 (2d Cir. 1998). The court considers
four factors to determine whether neglect is excusable: "(1) 'the danger of prejudice' to
the party opposing the extension; (2) 'the length of the delay and its potential impact on
judicial proceedings'; (3) 'the reason for the delay, including whether it was within the
reasonable control' of the party seeking the extension; and (4) whether the party seeking
the extension 'acted in good faith."' In reAm. Express, 672 F.3d at 129 (quoting Pioneer
Inv. Servs. Co. v. BrunswickAssocs. Ltd. P'ship, 507 U.S. 380,395 (1993)). Because the
first, second, and fourth factors "usually" weigh in favor of the party seeking such relief,
the Second Circuit has "focused" on the third factor, noting that "the equities will rarely
if ever favor a party who 'fail[s] to follow the clear dictates of a court rule[.]"' Silivanch
v. Celebrity Cruises, Inc., 333 F.3d 355, 366 (2d Cir. 2003).
Regarding the third factor, the Toms aver that their delay was the product of their
belief that they would be unable to secure counsel to represent them individually and
their lack of notice of the Opt-Out Litigation. As Defendants point out, however, the
Toms do not identify any efforts they undertook prior to the opt-out deadline to secure
counsel or determine whether there was opt-out litigation pending. They also do not
explain why they filed the instant motion four months after the Opt-Out Litigation
commenced. Most significantly, the Toms received notice ofthe December 2015
Settlement, which clearly set forth the consequences of not opting out. They nonetheless
failed to follow the court-ordered procedure for doing so. See In reAm. Express, 672
F.3d at 130 (affirming finding of no "excusable neglect" and observing that the "Class
Notice is a reasonably straightforward document that contains a list of readable questions
and answers discussing the content of the Class Action and the consequences of taking,
or not taking, action in response"); see also Canfield v. VanAtta Buick/GMC Truck, Inc.,
127 F .3d 248, 250 (2d Cir. 1997) (articulating the "principle that failure to follow the
clear dictates of a court rule will generally not constitute ... excusable neglect"). In such
circumstances, the Toms fail to provide a "reasonable basis" for their delay in bringing
this motion. See In re Painewebber, 147 F.3d at 135-36 (affirming a finding of no
excusable neglect where, although movant was hospitalized during the opt-out period, his
"professed need to speak with his attorney is not a reasonable basis for his nine months of
The first factor weighs in favor of Defendants, albeit not without countervailing
considerations. While it is unlikely that Defendants will be forced to expend significant
additional resources if the Toms are granted leave to opt out and join the Opt-Out
Litigation, Defendants persuasively assert that permitting the Toms to opt out at this time
could prompt other class members to seek permission for an untimely opt out. In large
enough numbers, an expansion of the opt-out class would be prejudicial. See Massey v.
On-Site Manager, Inc., 2013 WL 3149452, at *3 (E.D.N.Y. June 19, 2013) (concluding
that defendant "would be prejudiced if the Court were to grant Perez's exclusion request
as it would set a precedent for other class members to seek late exclusion").
The second factor, the length of the delay, weighs in Defendants' favor. The
deadline to opt out was twenty-one days prior to the May 13, 2016 fairness hearingapproximately ten months before the Toms filed this motion. Significantly less
substantial delays have precluded a finding of excusable neglect. See, e.g., In re
Adelphia Commc'ns Corp. Sec. & Derivatives Litig., 271 F. App'x 41,44 (2d Cir. 2008)
(holding that "Elkmont did not demonstrate excusable neglect because, despite the fact it
was aware of the settlement only one day after the opt out deadline, it still waited a full
month to file its motion for an extension of time"); Anwar v. Fairfield Greenwich Ltd.,
315 F.R.D. 638, 640 (S.D.N.Y. 2016) (finding that the length of delay counseled against
finding excusable neglect where movant submitted its opt-out notice two months after the
deadline). Courts have also observed that belated requests to opt out threaten to
'"undermine the finality of judgments ... and would discourage settlements of such
actions."' In re Prudential Sec. Inc. Ltd. P'ships Litig., 164 F.R.D. 362, 371-72
(S.D.N.Y. 1996) (commenting that "Defendants would be loath to offer substantial sums
of money in compromise settlements of class actions unless they can rely on the notice
provisions of Rule 23 to bind class members") (internal quotation marks omitted).
Regarding the fourth factor, the court is satisfied that the Toms have acted in good
faith and Defendants do not argue to the contrary. The Toms nonetheless "made a
conscious and informed choice of litigation strategy and cannot in hindsight seek
extraordinary relief." United States v. Bank ofNew York, 14 F.3d 756, 759 (2d Cir.
On balance, the relevant factors that must be considered in determining excusable
neglect weigh against such a finding in the facts and circumstances of this case. See In re
Painewebber, 147 F.3d at 136 (holding that the district court "reached the right
conclusion when it declined to grant plaintiff an enlargement of the deadline date to opt
out" and did not abuse its discretion by denying plaintiffs "motion to exclude himself
from the Class nearly a year after the deadline to do so had expired"). As a result, the
Toms remain bound by the December 2015 Settlement, and their motion to extend the
opt-out deadline must be DENIED.
For the foregoing reasons, the motion to extend the period to opt out of the
December 2015 Settlement is DENIED. (Doc. 2132.)
Dated at Burlington, in the District of Vermont, this A' day of July, 2017.
Christina Reiss, Chief Judge
United States District Court
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