Case 3:15-md-02670-JLS-MDD Document 2588 Filed 05/06/21 PageID.232038 Page 1 of 8
`
`
`LATHAM & WATKINS LLP
` Alfred C. Pfeiffer (CA 120965)
` Christopher S. Yates (CA 161273)
` Belinda S Lee (CA 199635)
` Niall E. Lynch (CA 157959)
` Ashley M. Bauer (CA 231626)
`505 Montgomery Street, Suite 2000
`San Francisco, California 94111-6538
`Telephone: +1.415.391.0600
`Facsimile: +1.415.395.8095
`Al.Pfeiffer@lw.com
`Chris.Yates@lw.com
`Belinda.Lee@lw.com
`Niall.Lynch@lw.com
`Ashley.Bauer@lw.com
`
`Counsel for Defendants StarKist Co.
`and Dongwon Industries Co., Ltd.
`
`
`
`
`
`UNITED STATES DISTRICT COURT
`FOR THE SOUTHERN DISTRICT OF CALIFORNIA
`
`
`
`
`
`
`
`IN RE: PACKAGED SEAFOOD
`Case No. 3:15-md-02670-JLS-MDD
`PRODUCTS ANTITRUST
`
`LITIGATION
`MDL No. 2670
`
`
`This Document Relates to:
`DEFENDANTS STARKIST CO.’S
`
`AND DONGWON INDUSTRIES CO.,
`1. Direct Purchaser Plaintiff
`LTD.’S RESPONSE TO PUTATIVE
`Class Action Track;
`CLASS PLAINTIFFS’ MOTIONS
`FOR PRELIMINARY APPROVAL
`2. End Payer Plaintiff Class
`OF SETTLEMENTS
`Action; and
`
`
`Hearing:
`3. Commercial Food Preparer
`May 20, 2021
`Date:
`Plaintiffs.
`10:30 a.m.
`Time:
`Room 4D
`Court:
`Judge: Hon. Janis L. Sammartino
`
`
`
`
`
`
`
`
`
`
`
`
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`
`
`
`
`
`
`
`
`
`
`
`
`ATTORNEYS AT LAW
`SAN F RANCIS CO
`
`
`
`
`
`
`
`
`
`
`
`
`
`SKC’S AND DWI’S RESP. TO PLS.’ MOTS. FOR
`PRELIM. APPROVAL OF SETTLEMENT
`CASE NO. 3:15-MD-2670-JLS-MDD
`
`
`

`

`Case 3:15-md-02670-JLS-MDD Document 2588 Filed 05/06/21 PageID.232039 Page 2 of 8
`
`
`I.
`
`INTRODUCTION
`StarKist Co. (“StarKist”) and Dongwon Industries Co., Ltd. (“DWI”) submit
`this response to Direct Purchaser Plaintiffs’ (“DPPs”), End Purchaser Plaintiffs’
`(“EPPs”), and Commercial Food Preparer Plaintiffs’ proposed settlement class
`notice plans, see ECF Nos. 2533, 2552, & 2561, because each have critical
`infirmities.
`DPPs’ plan for settlement class notice purports to provide notice of a
`settlement agreement while also simultaneously (a) telling all recipients that they
`are members of a “litigation class” and (b) providing instructions for opting out of
`that litigation class—despite the Ninth Circuit’s recent decision. See ECF No.
`2533-5 at 53; Olean Wholesale Grocery Coop., Inc. v. Bumble Bee Foods LLC,
`No. 19-56514, 2021 WL 1257845, at *12 (9th Cir. Apr. 6, 2021) (vacating and
`remanding). CFPs’ proposed notice likewise misleadingly tells recipients that “[a]
`Federal Court has certified a class action, and you or your company may be a
`member of that Class.” ECF No. 2561-4 at 29. EPPs’ plan for settlement class
`notice includes unnecessary and misleading characterizations of the significance of
`the Ninth Circuit’s Opinion. See ECF No. 2552-6 at 98, 101. Because all of the
`proposed notices are inaccurate, misleading, and likely to cause confusion among
`settlement class member recipients, the Court should direct settlement class
`counsel to submit revised notices focused solely on the settlement class—and
`removing all references to any putative litigation classes.
`FACTUAL AND PROCEDURAL BACKGROUND
`II.
`The Court issued an Order Granting Class Certification on July 30, 2019.
`ECF No. 1931. Certain Defendants then petitioned the Ninth Circuit for review of
`that order under Federal Rule of Civil Procedure 23(f). ECF No. 1935. The Ninth
`Circuit granted Defendants’ petition on December 20, 2012. ECF No. 2247.
`Meanwhile, DPPs moved the Court to approve their plan to disseminate
`notice to the DPP litigation class on August 29, 2019. ECF No. 1945. On
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`ATTORNEYS AT LAW
`SAN F RANCIS CO
`
`
`
`
`
`
`
`
`
`
`
`2
`
`SKC’S AND DWI’S RESP. TO PLS.’ MOTS. FOR
`PRELIM. APPROVAL OF SETTLEMENT
`CASE NO. 3:15-MD-2670-JLS-MDD
`
`
`

`

`Case 3:15-md-02670-JLS-MDD Document 2588 Filed 05/06/21 PageID.232040 Page 3 of 8
`
`
`January 28, 2020, the Court denied DPPs’ motion without prejudice, holding that
`“[g]iven the pending appeal . . . the Motion is premature.” ECF No. 2271. On
`March 31, 2021, having reached a settlement with Chicken of the Sea (“COSI”),
`DPPs moved for preliminary approval of that settlement and for the Court to
`approve their notice plan. ECF No. 2533.
`Among other things, DPPs’ proposed notice repeatedly refers to the
`certification of a litigation class and prompts class members to opt-out by a certain
`date or else lose their rights to sue. For example, the notice says:
`• Its purpose is to “[a]nnounce an Order certifying a Litigation Class
`and the deadline to exclude yourself from the Litigation Class.” ECF
`No. 2533-5, at 53.
`• “The Court has allowed or ‘certified’ a Class of direct Packaged Tuna
`purchasers.” Id. at 56.
`• “If you are a Class Member and do not exclude yourself, you will be
`eligible to participate in any monetary distributions to qualified Class
`Members and you will be bound by the results of the litigation and
`proposed Settlement.” Id. at 57.
`On April 6, 2021, the Ninth Circuit issued an order “vacat[ing] the district
`court’s order certifying the classes and remand[ing] with instructions to resolve the
`factual disputes concerning the number of uninjured parties in each proposed class
`before determining predominance.” Olean Wholesale Grocery Coop., Inc. v.
`Bumble Bee Foods LLC, No. 19-56514, 2021 WL 1257845, at *12 (9th Cir. Apr. 6,
`2021).
`On April 9, 2021, CFPs moved for preliminary approval of their proposed
`settlement with COSI and for approval of their notice plan. See ECF No. 2553
`(withdrawn and replaced by ECF No. 2561). Despite the Ninth Circuit’s vacatur,
`CFPs’ notice tells recipients that:
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`ATTORNEYS AT LAW
`SAN F RANCIS CO
`
`
`
`
`
`
`
`
`
`
`
`3
`
`SKC’S AND DWI’S RESP. TO PLS.’ MOTS. FOR
`PRELIM. APPROVAL OF SETTLEMENT
`CASE NO. 3:15-MD-2670-JLS-MDD
`
`
`

`

`Case 3:15-md-02670-JLS-MDD Document 2588 Filed 05/06/21 PageID.232041 Page 4 of 8
`
`
`
`• “A Federal Court has certified a class action . . . .” ECF No. 2561-4 at
`24.
`• “You have been identified as a Commercial Food Preparer (“CFP”)
`Class Member.” Id. at 2561-4 at 22.
`On April 9, 2021, EPPs filed a motion for preliminary approval of their
`settlement with COSI and for the Court to approve their notice plan. ECF
`No. 2552. EPPs’ proposed notice improperly characterizes the Ninth Circuit’s
`decision. For example, it says:
`• “On July 30, 2019, the Court certified a class . . . . On April 6, 2021,
`after an appeal, the Court of Appeals vacated the above order on a
`narrow issue and asked the Court to conduct further analysis.” ECF
`No. 2552-6, at 98.
`• “In July 2019, the Court certified a class of End Payer Plaintiffs . . . .
`On April 6, 2021, the Court of Appeals vacated this order and directed
`the Court to further analyze a narrow economic issue.” ECF No.
`2552-6, at 101.
`The pending motions were set for a hearing on May 20, 2021. On April 9,
`2021, the Court also issued an Order to Show Cause “why this hearing date should
`not be vacated pending resolution of the class certification issues after the Court of
`Appeals issues a mandate.” ECF No. 2551. On April 23, 2021, the putative
`classes filed their response to the Court’s Order to Show Cause asking that the
`Court defer consideration of their motions for preliminary class settlement
`approval until after the Court “determines whether to recertify the litigation
`classes.” ECF No. 2565 at 1.
`On April 28, 2021, the Ninth Circuit issued an order indicating that a judge
`had sua sponte called for a vote on whether to rehear the appeal en banc and
`directed the parties to submit briefs by May 19, 2021 addressing whether the case
`should be reheard. ECF No. 2571. On April 30, 2021, StarKist and DWI filed
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`ATTORNEYS AT LAW
`SAN F RANCIS CO
`
`
`
`
`
`
`
`
`
`
`
`4
`
`SKC’S AND DWI’S RESP. TO PLS.’ MOTS. FOR
`PRELIM. APPROVAL OF SETTLEMENT
`CASE NO. 3:15-MD-2670-JLS-MDD
`
`
`

`

`Case 3:15-md-02670-JLS-MDD Document 2588 Filed 05/06/21 PageID.232042 Page 5 of 8
`
`
`their reply to the Court’s Order to Show explaining that StarKist and DWI did not
`object to the Court proceeding to hear the pending motions for preliminary
`approval because the standards for settlement class certification differ from those
`governing litigation class certification. ECF No. 2581. The putative class
`plaintiffs filed an amended response to the Order to Show Cause on May 2, 2021,
`indicating that they wished to proceed with a preliminary approval hearing on their
`respective settlements and noting that “[a]ny further proceedings on recertification
`of a litigation class can be deferred until after the Ninth Circuit issues its mandate.”
`ECF No. 2852 at 2.
`III. ARGUMENT
`The Legal Standard for Class Notice
`A.
`Notice to a litigation class should be made “[a]fter the court certifies a class
`under Federal Rule of Civil Procedure 23(b)(3).” Cruz v. Dollar Tree Stores, Inc.,
`No. 07-2050 SC, 2009 WL 1974404, at *1 (N.D. Cal. July 2, 2009), modified in
`part, 270 F.R.D. 499 (N.D. Cal. 2010); see also Fed R. Civ. P. 23(c)(2)(B) (“[f]or
`any class certified under Rule 23(b)(3) . . . the court must direct to class members
`the best notice that is practicable under the circumstances”) (emphasis added). “In
`determining whether the proposed means of giving notice is appropriate, the court
`should also give careful attention to the content and format of the notice.” Fed R.
`Civ. P. 23(c)(2)(B) advisory committee’s note on 2018 amendment. Class notice
`must have only “information that a reasonable person would consider to be
`material in making an informed, intelligent decision of whether to opt-out or
`remain a member of the class.” Patton v. Dollar Tree Stores, Inc., No.
`CV1503813MWFPJWX, 2017 WL 8233883, at *1 (C.D. Cal. Apr. 5, 2017).
`While plaintiffs typically submit proposed notices, “the Court is ultimately
`responsible for directing notice to the class members and protecting their due
`process rights to remain in the class or be excluded.” Id. at *2. Courts have
`required revisions to proposed litigation class notices to a litigation class where the
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`1 2 3 4 5 6 7 8 9
`
`ATTORNEYS AT LAW
`SAN F RANCIS CO
`
`
`
`
`
`
`
`
`
`
`
`5
`
`SKC’S AND DWI’S RESP. TO PLS.’ MOTS. FOR
`PRELIM. APPROVAL OF SETTLEMENT
`CASE NO. 3:15-MD-2670-JLS-MDD
`
`
`

`

`Case 3:15-md-02670-JLS-MDD Document 2588 Filed 05/06/21 PageID.232043 Page 6 of 8
`
`
`descriptions of the nature of the action or the claims, issues, or defenses are
`“inaccurate” or “not sufficiently neutral.” Patton, 2017 WL 8233883, at *2.
`Likewise, they have stripped descriptions of prior rulings from proposed settlement
`class notices as “unnecessarily confusing to class members.” See, e.g., Stafford v.
`Brink’s, Inc., No. CV1401352MWFPLAX, 2016 WL 6583046, at *3 (C.D. Cal.
`Mar. 8, 2016).
`DPPs’ Proposed Notice Is Improper and Misleading
`B.
`DPPs’ proposed notice would effectively combine notice to the settlement
`class with notice to a now-vacated litigation class. See ECF No. 2533-5 at 53
`(“[Y]ou could be affected by a class action lawsuit and a proposed settlement. []
`You or your company have been identified as a member of a Court-certified Class.
`This notice is to: Announce an Order certifying a Litigation Class . . . [and]
`[p]rovide information regarding a proposed Settlement . . . .”). There is no basis in
`Rule 23 to provide “class notice” to a vacated litigation class in any context—
`much less when combined with settlement class notice.1 This is reason enough to
`require settlement class counsel to revise their notice plan.
`In addition, DPPs’ proposed notice is misleading. It repeatedly mentions
`that the Court has certified a litigation class, tells the reader that they have “been
`identified as a member of a Court-certified Class,” and sets forth a deadline by
`which they must opt out “from the Litigation Class.” See id. But the Ninth Circuit
`has since vacated this “litigation class,” and the propriety of certification may be
`the subject of further en banc appellate review. Accordingly, DPPs’ proposed
`notice is “inaccurate” and should not be approved. See Patton, 2017 WL 8233883,
`at *2.
`
`1 The Court already considered, and rejected, an earlier request by DPPs to provide
`litigation class notice. See Order Denying DPPs’ Mot. for Approval of Proposed
`Plan for Dissemination of Class Notice and Mot. to Modify Class Definition, ECF
`No. 2271 (denying motion as premature “[g]iven the pending appeal.”). Now that
`the Ninth Circuit has vacated certification and is considering a en banc rehearing,
`there remains serious uncertainty about the fate of the putative DPP litigation class,
`and thus litigation class notice remains “premature.”
`
`SKC’S AND DWI’S RESP. TO PLS.’ MOTS. FOR
`PRELIM. APPROVAL OF SETTLEMENT
`CASE NO. 3:15-MD-2670-JLS-MDD
`
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`
`
`
`
`6
`
`1 2 3 4 5 6 7 8 9
`
`
`
`ATTORNEYS AT LAW
`SAN F RANCIS CO
`
`
`
`

`

`Case 3:15-md-02670-JLS-MDD Document 2588 Filed 05/06/21 PageID.232044 Page 7 of 8
`
`
`
`CFPs’ Proposed Notice Plan Is Misleading and Confusing
`C.
`Like the DPPs’ proposed plan, CFPs’ proposed settlement notice tells the
`recipient that “[a] Federal Court has certified a class action,” ECF No. 2561-4 at 2,
`and “[y]ou have been identified as a Commercial Food Preparer (“CFP”) Class
`Member.” Id. at 2561-4 at 22. The proposed notice plan misleadingly omits
`mention of the Ninth Circuit’s vacatur and so is likely to mislead and confuse
`recipients. It should not be approved as drafted. See Patton, 2017 WL 8233883, at
`*2.
`
`EPPs’ Proposed Notice Mischaracterizes the Record
`D.
`While EPPs’ notice is properly directed at only the proposed EPP settlement
`class, it is deficient because it will cause unnecessary confusion to members of the
`putative litigation class. EPPs include unnecessary and misleading
`characterization of the Ninth Circuit’s decision vacating class certification, which
`they say turned on a “narrow economic issue.” ECF No. 2552-6, at 101. As
`StarKist and DWI have explained, EPPs’ counsel misunderstand the significance
`of the Ninth Circuit’s decision. See ECF No. 2581. And in any event, because the
`standards for certifying a settlement class and a litigation class are different, see id.
`at 3-4, neither the present state of the putative litigation class nor EPP counsel’s
`interpretation of the Ninth Circuit’s opinion is “information that a reasonable
`person would consider to be material” in deciding whether to opt-out of the
`settlement class. Patton, 2017 WL 8233883, at *1. Instead, it is superfluous
`information that is “unnecessarily confusing to class members.” Stafford, 2016
`WL 6583046, at *3.
`IV. CONCLUSION
`For the foregoing reasons, StarKist and DWI respectfully request the Court
`order DPPs, CFPs, and EPPs to submit revised proposed notices that focus solely
`on the proposed settlement classes.
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`ATTORNEYS AT LAW
`SAN F RANCIS CO
`
`
`
`
`
`
`
`
`
`
`
`7
`
`SKC’S AND DWI’S RESP. TO PLS.’ MOTS. FOR
`PRELIM. APPROVAL OF SETTLEMENT
`CASE NO. 3:15-MD-2670-JLS-MDD
`
`
`

`

`Case 3:15-md-02670-JLS-MDD Document 2588 Filed 05/06/21 PageID.232045 Page 8 of 8
`
`
`Dated:
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`Respectfully submitted,
`
`By: s/ Belinda S Lee
`LATHAM & WATKINS LLP
`Alfred C. Pfeiffer
`Christopher S. Yates
`Belinda S Lee
`Niall E. Lynch
`Ashley M. Bauer
`505 Montgomery Street, Suite 2000
`San Francisco, CA 94111-6538
`Tel: (415) 391-0600
`Fax: (415) 395-8095
`E-Mail: Al.Pfeiffer@lw.com
`E-Mail: Chris.Yates@lw.com
`E-Mail: Belinda.Lee@lw.com
`
`E-Mail: Niall.Lynch@lw.com
`E-Mail: Ashley.Bauer@lw.com
`
`Counsel for Defendants StarKist Co. and
`Dongwon Industries Co., Ltd.
`
`May 6, 2021
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`ATTORNEYS AT LAW
`SAN F RANCIS CO
`
`
`
`
`
`
`
`
`
`
`
`8
`
`SKC’S AND DWI’S RESP. TO PLS.’ MOTS. FOR
`PRELIM. APPROVAL OF SETTLEMENT
`CASE NO. 3:15-MD-2670-JLS-MDD
`
`
`