Case: 1:15-cv-02937 Document #: 370 Filed: 07/14/20 Page 1 of 14 PageID #:12500
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`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF ILLINOIS
`EASTERN DIVISION
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`HARRY PLOSS, as Trustee for the
`HARRY PLOSS TRUST DTD
`8/16/1993, on behalf of Plaintiff
`and all others similarly situated,
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`Plaintiffs,
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`v.
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`KRAFT FOODS GROUP, INC. and
`MONDELĒZ GLOBAL LLC,
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`Defendants.
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`Case No. 15 C 2937
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`Judge John F. Kness
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`DEFENDANTS’ RESPONSE TO PLAINTIFFS’ MOTION
`FOR APPROVAL OF CLASS NOTICE
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`Defendants Kraft Foods Group Inc. and Mondelēz Global LLC (collectively, “Kraft”)
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`respectfully request that the Court approve Plaintiffs’ proposed class notice with the following
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`modifications. First, the Court should adopt Kraft’s proposed language concerning the
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`preservation of documents. Plaintiffs’ proposal is needlessly equivocal with regard to
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`preservation and may result in the destruction of records essential to class members’ claims and
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`Kraft’s defenses. Second, the Court should include Kraft’s single sentence concerning the
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`potential for class member discovery. Plaintiffs’ objection ignores the law and withholds critical
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`information from class members. Third, the Court should order Kraft’s name removed from the
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`proposed case website because its inclusion gratuitously prejudices Kraft. And fourth, Plaintiffs’
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`proposed notice makes it too difficult for class members to opt out. The opt out protocol should
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`be amended to (1) allow class members additional time to opt out in light of Plaintiffs’ plan to
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`contact most class members through intermediaries and (2) allow class members to opt out via
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`1
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`

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`Case: 1:15-cv-02937 Document #: 370 Filed: 07/14/20 Page 2 of 14 PageID #:12501
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`email or the case website, consistent with modern forms of communication and the difficulties
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`imposed by the COVID-19 pandemic.
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`I.
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`The Court should adopt Kraft’s clear preservation language and reject Plaintiffs’
`equivocal approach.
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`Kraft’s proposed preservation language actually directs potential class members to
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`preserve the derivatives and cash wheat trading records that all parties agree are critical to class
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`members’ claims and Kraft’s defenses. See Ex. 1 at 4; Ex. 2 at 3;1 see also Dkt. No. 367 (“Pls.’
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`Mem.”) Ex. C at 4. This notice provision is preferable to Plaintiffs’ equivocal approach.
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`As an initial matter, there is no serious dispute that class members’ trading records are
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`essential. Plaintiffs’ class certification expert admitted that trading records are critical to
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`determine damages. See Dkt. No. 240, Pirrong Rep. ¶ 318 (“An exact calculation of damages
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`requires knowledge of the exact pattern of sales and purchases by each individual or firm that
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`traded during the period Kraft’s manipulation distorted the price. This cannot be known prior to
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`the receipt of proofs of claim from class members.”); see also Dkt No. 264-2, Pirrong Tr. 355:6-
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`24, 460:4-21 (admitting individual records are necessary to calculate offsets and ascertain a
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`complete record of a class member’s trading). Consistent with their expert’s view, earlier this
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`year Plaintiffs asked the Court to allow an interim notice to “instruct[] [class members] to retain
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`their pertinent trading records.” Dkt. No. 336 ¶ 4. Judge Chang agreed, and instructed the parties
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`to negotiate an interim notice “so that the records get retained.” Dkt. No. 340 at 4:7-22.
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`Plaintiffs do not dispute that such records may be needed. Instead, they suggest a clear
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`preservation directive is unnecessary because, in their view, class member records may never be
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`necessary. See Pls. Mem. at 12-13 (listing various factors that would render preservation
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`1 Kraft has attached its proposed notices as Exhibits 1 and 2 to this response and highlighted the
`disputed provisions.
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`2
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`Case: 1:15-cv-02937 Document #: 370 Filed: 07/14/20 Page 3 of 14 PageID #:12502
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`unnecessary, including settlement and trial outcome). But their argument misses the point of a
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`preservation notice, which is to make sure records are maintained in case they become necessary
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`as the case progresses.
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`Recognizing the importance of individual trading records, Kraft’s proposal informs class
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`members that they “should preserve” these records because the records may be necessary to
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`establish and quantify class members’ claims (including offsets) if Plaintiffs prevail at trial. See
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`Pls.’ Mem. Ex. C at 4. Plaintiffs’ proposal, by contrast, merely “encourage[s]” class members to
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`preserve such records. Id. Worse, Plaintiffs offer such encouragement only after informing class
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`members that Plaintiffs intend to seek such information from CME in the first instance. Aside
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`from the obvious chilling effect it will have on preservation, Plaintiffs’ reference to CME data is
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`both dubious and not a substitute for class members’ trading records.
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`Plaintiffs have offered no reason to believe they will be able to obtain such information
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`from CME. Indeed, if such information were actually available, Plaintiffs’ notice plan does not
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`comport with Rule 23. Rule 23 requires “the best notice that is practicable under the
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`circumstances, including individual notice to all members who can be identified through
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`reasonable effort.” Fed. R. Civ. P. 23(c)(2)(B) (emphasis added). But Plaintiffs intend to notify
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`the majority of class members through their brokers, see Pls.’ Mem. at 6-8, presumably because
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`the identity of the actual class members are unknown. If Plaintiffs could obtain the identities of
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`class members from CME in a single data dump, there would be no reason to notify only the
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`brokers and rely on them to identify and contact class members. To the contrary, inserting a
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`superfluous middleman into the notice process would be inconsistent with Rule 23’s guidance to
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`provide individual notice to all class members.
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`3
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`Even if Plaintiffs were able to obtain such data from CME, class member records will
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`almost surely remain necessary to understand class members’ profits and losses, account for
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`class members that hold interests in multiple accounts, and account for gains that must be offset
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`against Plaintiffs’ losses. For example, one lead plaintiff—Harry Ploss—held interests in
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`numerous different futures accounts with multiple commodity trading advisors and multiple
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`brokers during the relevant time period. While some of those accounts were in his name, others
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`were held by a trust. Plaintiffs agree that Ploss’s losses must be offset by his gains to calculate
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`his damages. See Dkt. No. 264-4, Robinson Rep. at ¶¶ 21-25. They also agree that the calculation
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`must incorporate all of Ploss’s accounts. Id.; cf. Kohen v. Pac. Inv. Mgmt. Co. LLC, 571 F.3d
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`672, 676 (7th Cir. 2009) (noting “each member of the class will have to submit a claim” and that
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`“[s]ome of the class members . . . will submit a claim that will be rejected because the claimant
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`cannot prove damages, having obtained off-setting profits”). The importance of accounting for
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`appropriate offsets to damages here is not merely theoretical. When Plaintiffs’ expert performed
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`offset calculations for the named plaintiffs in this case, he determined that five of the seven
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`named plaintiffs in this case—including Harry Ploss—either profited or suffered no losses as a
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`result of the alleged price inflation. See Dkt. No. 264-4, Robinson Rep. Ex. 5. Any data available
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`from CME, however, will almost certainly not be able to identify the various accounts in which
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`Ploss holds a stake.
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`Likewise, CME data is incapable of providing information on cash transactions where
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`hedgers obtained a gain in the cash market equivalent to their alleged loss in the futures market.
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`As CME explains on its website, “[h]edging is essentially taking a position in the futures or
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`options market that is opposite your current position in the cash market. Since the cash and
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`futures prices tend to move up and down together, any gains or losses in the cash market will be
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`4
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`counterbalanced with gains or losses in the futures market.”2 That is particularly true in the
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`wheat market because cash transactions typically expressly incorporate the futures contract into
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`the price term (e.g., +0.75WZ means the cash price is the December futures price plus 75
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`cents/bushel).3 Accordingly, hedgers with short futures positions could have lost money if the
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`futures price became artificially high; but they likely received a corresponding gain on their cash
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`sale, because the cash price expressly included the allegedly inflated futures price—making the
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`class member’s net damages zero. This is the point of hedging. Plaintiffs’ expert agreed that if
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`“the cash price at which [a hedger] sold would be increased by as much as the futures price that
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`they bought,” the hedger would have suffered no damages from an economic standpoint. Dkt.
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`No. 264-2, Pirrong Tr. 350:14-351:5.
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`Although Plaintiffs have agreed to “encourage” class members to preserve records of
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`their cash wheat trading in addition to futures trading, Plaintiffs disagree with Kraft’s language
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`because it also tells class members why they should preserve such records: because “[c]lass
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`members … may be required to offset claims for money or benefits with any gains made on cash
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`market transactions.” Plaintiffs do not offer any reason for keeping class members in the dark,
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`nor is there one.4
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`2
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`3
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`See https://www.cmegroup.com/education/courses/introduction-to-agriculture/grains-oilseeds/how-to-
`hedge-grain-risk.html.
`See https://www.cmegroup.com/education/courses/introduction-to-agriculture/grains-oilseeds/learn-
`about-basis-grains.html (explaining cash price components).
`4 Plaintiffs argue, in a footnote, that Kraft’s offset defense is wholly unavailable. This argument is
`irrelevant since Plaintiffs have already agreed to language “encouraging” the preservation of cash
`records. In any case, the authority Plaintiffs cite, Transnor (Bermuda) Ltd. v. BP N. Am. Petroleum,
`736 F. Supp. 511, 522-23 & n. 15 (S.D.N.Y. 1990), is inapposite. In Transnor, the plaintiffs sought to
`expand their damages in a commodities claim to encompass losses that occurred outside the futures
`market. The court held that damages in a CEA claim are limited to “assets that are part of a futures
`market.” Id. at 523. Kraft’s offset defense affects the calculation of those damages, and whether such
`damages even occurred. The typical cash wheat contract includes the futures price in the cash price
`term, such that the value of any cash purchase or sale is directly impacted by the futures price. A class
`member whose loss on a hedging position in the futures market is directly (and intentionally) offset
`5
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`The Court should reject Plaintiffs’ equivocal approach to record preservation and adopt
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`Kraft’s proposed language to ensure class members understand their duty to preserve documents
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`critical to their claims and Kraft’s defenses.
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`II.
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`Notifying class members that they may be required to participate in some form of
`discovery is both accurate and fair.
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`Kraft’s proposal to include a single sentence notifying class members that they may be
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`subject to discovery on Kraft’s individual defenses and their damage claim is accurate, fair, and
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`not likely to intimidate any class member. Kraft has a right to pursue its individual defenses and
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`class members have a right to know what may be required of them while they still have an
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`opportunity to opt out. See Hughes v. Kore of Indiana Enter., Inc., 731 F.3d 672, 677 (7th Cir.
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`2013) (noting one purpose of the class notice is to protect the “valuable” right to opt out of a
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`class action).
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`First, Supreme Court and Seventh Circuit case law make clear that Kraft, like other
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`defendants in class actions, must have the opportunity to litigate individual defenses. Wal-Mart
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`Stores, Inc. v. Dukes, 564 U.S. 338, 348, 367 (2011) (rejecting proposal to litigate individual
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`issues through “randomly selected ‘sample cases’” and explaining that “a class cannot be
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`certified on the premise that [Defendant] will not be entitled to litigate its statutory defenses to
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`individual claims.”); Mullins v. Direct Digital, LLC, 795 F.3d 654, 669-71 (7th Cir. 2015)
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`(noting that due process requires that “the defendant will receive a fair opportunity to present its
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`defenses when putative class members actually come forward” and “to challenge the calculation
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`of damages awards for particular class members”).
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`by a gain in the physical wheat market has suffered no damage at all. In any event, Transnor concerns
`a limitation on what a plaintiff can recover, not a limitation on a defense to whether damages even
`occurred.
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`6
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`Giving Kraft a full and fair opportunity to litigate these issues requires that it be allowed
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`to take discovery from individual claimants after a trial on class-wide liability. See Vivendi, 765
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`F. Supp. 2d at 584 (holding individual issue in securities class action “would call for separate
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`inquiries into the individual circumstances of particular class members.”); cf. Lawrence E. Jaffe
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`Pension Plan v. Household Int’l, Inc., 2005 WL 3801463, at *4 (N.D. Ill. Apr. 18, 2005) (noting
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`that defendants could take “discovery into individualized issues” after determination of class-
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`wide liability). Among other defenses, Kraft intends to pursue issues related to Plaintiffs’
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`damages claims; statute of limitations defenses against various class members, including many
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`of the 17 delivery elevators featured in Plaintiffs’ notice plan; defenses based on individual
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`reliance in light of Plaintiffs’ plan to offer evidence in support of a fraud on the market theory to
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`support class-wide liability; and other defenses based on class members’ conduct in the market
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`during the class period, including but not limited to market participants who Plaintiffs’ expert
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`identified as contributing to the price inflation he chose to attribute solely to Kraft. See Dkt.
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`No. 240 ¶ 8.
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`Although premature, Plaintiffs seek to limit post-trial discovery, and with it Kraft’s
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`ability to litigate individual issues, by arguing that it is “disfavored.” Pl.’s Mem. at 14. The
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`authority that Plaintiffs cite, however, predates Wal-Mart and Mullins and says nothing about
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`individual issues or litigating individual defenses. See generally Clark v. Universal Builders,
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`Inc., 501 F.2d 324, 332 (7th Cir. 1974). Post-trial discovery into individual issues in securities
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`cases is well-accepted. See Household Int’l, 2005 WL 3801463, at *4 (“[T]he most efficient and
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`expeditious manner of managing this litigation is to delay discovery into individualized issues
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`until after class-wide liability has been determined.”); see also Vivendi, 765 F. Supp. 2d at 584,
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`supra. In Household, for example, “[t]he defendants were allowed to serve written discovery on
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`7
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`as many class members as they wanted,” and were allowed to depose the number of absent class
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`members that they initially estimated was necessary. Glickenhaus & Co. v. Household Int’l, Inc.,
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`787 F.3d 408, 431-32 (7th Cir. 2015).5
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`In any event, Plaintiffs have acknowledged that some post-trial discovery would be
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`appropriate in the event of a liability verdict. See Joint Status Rep. in Reassigned Case, Dkt. 357
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`at 9 n.2. The only thing that remains for the Court to determine is the scope, an issue which will
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`likely remain unresolved unless and until a ruling is necessary.
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`Second, Kraft’s proposal fairly notifies class members that they “may” have to participate
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`in discovery consistent with Kraft’s right to pursue individual issues. In fact, silence on this issue
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`suggests that class members will not have to participate in any form of discovery, which is not
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`accurate. One court in this district described a notice provision advising class members that they
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`may have to give a deposition as:
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`the type of information which notifies putative members of their potential
`obligations as a class member. While plaintiffs’ proposed notice contains
`information as to the expenses for which class members will not be responsible, it
`is silent on those expenses for which members may be responsible. This silence
`could be interpreted by putative class members as an assurance that they will not
`incur any expenses by remaining in the class. While it is not certain that class
`members will incur travel costs for depositions or trial, the notice should address
`the possibility for such expenses.
`Markham v. White, No. 95-cv-2065, 1999 WL 1072647, at *7 (N.D. Ill. Sept. 9, 1999); see Blakes
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`v. Illinois Bell Tel. Co., No. 11-cv-336, 2011 WL 2446598, at *9 (N.D. Ill. June 15, 2011) (a
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`provision acknowledging “the possibility that [class members] will have to respond to written
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`discovery, sit for depositions, and testify at trial” was “fair and accurate”).
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`5
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`In fact, some courts in securities cases have even allowed discovery questionnaires to be sent to class
`members along with the class notice. See Schwartz v. Celestial Seasonings, Inc., 185 F.R.D. 313, 319
`(D. Colo. 1999); In re Storage Tech. Corp. Sec. Litig., No. 92-K-750, 1994 WL 1718450, at *1 (D.
`Colo. May 16, 1994).
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`8
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`Concealing the possibility of discovery from absent class members undermines both
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`efficiency and basic fairness. Kraft, the lead Plaintiffs, and the Court are all aware of Kraft’s
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`intention to take post-trial discovery to vindicate its rights. Absent class members, however, are
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`not. In the event of a liability verdict for the class, Kraft would seek to litigate—and take
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`discovery of—those individual issues. Basic fairness and the purpose of Plaintiffs’ motion—
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`notice—are not served by concealing Kraft’s position regarding discovery from absent class
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`members. Plaintiffs’ proposed notice, which does not include a notification about potential
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`discovery, risks misleading the class on this important issue.
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`Third, including Kraft’s single sentence relating to discovery will not “intimidate” class
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`members. The class members in this case are predominantly sophisticated investors and traders.
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`Cf. Pl.’s Mem. at 6-7 (notice will be sent to “large traders,” clearing firms and futures
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`commission merchants)). The sophistication of these class members is all the more reason to flag
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`that they may be subject to discovery—Plaintiffs’ proposed preservation language amounts to no
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`more than a suggestion that class members preserve evidence, and explaining to class members
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`why they should do so makes it more likely that they will.
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`The cases that Plaintiffs cite for the proposition that a notice of potential discovery will
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`“deter” class participation, Garcia v. Elite Labor Serv., Ltd., No. 95-cv-2341, 1996 WL
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`33500122 (N.D. Ill. July 11, 1996), report and rec. adopted, 1996 WL 559958 (N.D. Ill. Sept.
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`30, 1996), and Marshall v. Amsted Indus., Inc., No. 10-cv-0011-MJR-CJP, 2010 WL 2901743
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`(S.D. Ill. July 21, 2010), predate Wal-Mart and Mullins, which make clear Kraft’s right to litigate
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`individual issues. Plaintiffs’ cases are also actions brought by individual employees to collect
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`unpaid wages. That individual employees suing an employer may experience “intimidation” says
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`9
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`nothing about whether sophisticated investors will be “intimidated” by the prospect of litigation
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`against another participant in the same trading market.
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`Moreover, in Garcia,6 the court reasoned that such language was unnecessary because
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`“the damage calculations more than likely will be accomplished through the paperwork in
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`[defendant’s] possession—not through the testimony of individual claimants.” Garcia, 1996 WL
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`33500122, at *4. The opposite is true in this case. Because the complete scope of class members’
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`relevant wheat futures and cash transactions across all of their accounts is information solely in
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`their possession, Kraft cannot litigate its individual defenses or damages claims without
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`additional discovery.
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`The notion that such language in class notices is “intimidating” is not widely accepted.
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`Other courts in this district, in cases similar to the ones Plaintiffs cite, have rejected such
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`arguments and allowed language similar to Kraft’s proposal, acknowledging that this language is
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`“fair and accurate.” Blakes, 2011 WL 2446598, at *9 (rejecting plaintiffs’ argument that such
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`language was “overly intimidating”); see Petersen v. Marsh USA, Inc., No. 10-cv-1506, 2010
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`WL 5423734, at *6 (N.D. Ill. Dec. 23, 2010) (requiring plaintiffs to add to the notice: ‘While the
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`suit is proceeding, you may be required to provide information, have your deposition taken, and
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`testify in court’”).
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`III.
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`Including “Kraft” in the website name prejudices Kraft with no countervailing
`benefit to class members.
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`The court should also adopt Kraft’s proposal to remove Kraft’s name from the class
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`website. Including that specific name, rather than the generic website address that Kraft
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`proposes, prejudices Kraft because it suggests that Kraft has in fact engaged in wheat futures
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`6 Garcia is the only case that Plaintiff cites concerning similar language to Kraft’s proposal; Marshall
`concerned a notice that claimants may have to pay court costs for unsuccessful claims.
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`10
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`manipulation. This prejudice would be wide-ranging because Plaintiffs propose to use banner
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`ads, linking to the class website, on the website for Stocks & Commodities magazine, to provide
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`notice to potential class members. Accordingly, a significant number of non-class members will
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`see the website and presume that Kraft has engaged in manipulation, resulting in detrimental
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`effects across Kraft’s businesses. See Petrone v. Werner Enterprises, Inc., No. 8:11CV401, 2013
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`WL 12176452, at *1 (D. Neb. Apr. 1, 2013) (requiring removal of defendant’s name from
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`website URL because use of defendant’s name was “not neutral”). On the other hand, using the
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`name “Kraft” in the website provides literally zero benefit to class members—the class notice
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`clearly explains that Kraft is the defendant.
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`Plaintiffs present no justification for their proposed website URL. They merely complain
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`that other cases have used the defendants’ names in the class notice website address. But in the
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`two cases they cite, Kohen v. Pacific Investment Management Co., 05-cv-4681, Dkt. No. 451,
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`471 (N.D. Ill. Aug. 20, 2009), and In re Dairy Farmers of America, Inc. Cheese Antitrust
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`Litigation, 09-cv-3690, Dkt. 495, ¶ 9 (N.D. Ill. Mar. 17, 2014), neither defendant objected to the
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`use of their names in the website. See Kohen, No. 05-cv-4681, Dkt. No. 451 (N.D. Ill. Aug. 07,
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`2009) (plaintiff’s motion for approval of class notice); Kohen, No. 05-cv-4681, Dkt. 471 (N.D.
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`Ill. Aug. 20, 2009) (approving proposed class notice in a minute order); In re Dairy Farmers of
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`America, 09-cv-3690, Dkt. No. 327 (N.D. Ill. Mar. 21, 2013) (requesting approval of proposed
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`settlement agreement); In re Dairy Farmers of America, 09-cv-3690, Dkt. 327-1 at 8, 42-46, 53
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`(N.D. Ill. Mar. 21, 2013) (settlement agreement signed by all settling defendants, agreeing to
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`class website with address www.dairyfarmersdirectpurchaseaction.com).
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`It is not enough to say that Kraft cannot be prejudiced simply because defendants in
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`different cases, under different circumstances, did not believe they would be. In this case and
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`11
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`under these circumstances, inclusion of Kraft’s name in the website address would be prejudicial
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`without providing any benefit to the class. The Court should adopt Kraft’s alternate website.
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`IV.
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`Class Members should be given additional time to opt out and should be able to do
`so by email or through the class website.
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`Plaintiffs’ proposed “seven point” notice plan anticipates contacting the majority of
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`potential class members through clearing firm members or futures commission merchants
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`(collectively, “brokers”), and relying on those brokers to identify and contact their clients—who
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`are the actual class members—by mail or email.7 See Pls.’ Mem. at 6-7. Although potential class
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`members may be contacted by email or through the case website, however, Plaintiffs’ proposed
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`notice requires class members to mail a signed, written statement requesting exclusion from the
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`class. This is unnecessarily cumbersome and risks deterring class members who would otherwise
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`opt out.
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`First, the court should allow class members to opt out by either email or through the
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`website itself.8 See Exs. 1 & 2 (proposing language for alternative means of opting out).
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`Allowing online opt outs is appropriate when “no action is required for a class member to be
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`included in the class,” and there is no risk of confusion in a case such as this one, when “the class
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`members here are businesses, and their owners possess the level of sophistication necessary to
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`7 Although Plaintiffs intend to contact some market participants directly as set forth in Points 1 and 2 of
`their notice plan, Pls.’ Mem. at 6-7, there is no evidence those participants represent a substantial
`portion of the class. Point 2 of Plaintiffs’ plan involves contacting firms who traded between
`November 28 and December 14 (i.e., two of the six weeks in Plaintiffs’ class period). Plaintiffs claim
`that Point 1 of their notice plan will result in direct contact to firms which held “more than 90% of the
`total open interest … on certain days.” Id. at 6. But neither Plaintiffs nor the documents they cite
`identify those “certain days” or the percentage of the class period they represent.
`8 Plaintiffs gave Kraft no indication that they intended to give email notice to class members, so Kraft
`registered no objection to the mailed opt-out requirement, because mailing exclusion requests was
`congruous with mailed class notice. But Plaintiffs have now indicated that they request emailed
`notice, which makes the mailed opt-out requirement incongruous and puts an unfair burden on absent
`class members—a burden greater than one that Plaintiffs are willing to shoulder. Kraft does not,
`however, object to email notice provided that the electronic opting out is also made available.
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`12
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`read and understand a simple and clear opt-out form.” In re Wholesale Grocery Prod. Antitrust
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`Litig., No. 09-md-2090 ADM/TNL, 2017 WL 826917, at *4 (D. Minn. Mar. 1, 2017).9 Allowing
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`electronic opt outs—whether through email or the case website—is also consistent with how
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`business is conducted in the modern era. The ongoing pandemic, where this district has restricted
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`the use of paper copies, merely reinforces the need to make a simple, electronic means available
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`to class members who wish to opt out.
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`Second, because Plaintiffs’ notice plan relies on brokers first identifying and then mailing
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`or emailing potential class members, class members should be allowed 60 days to opt out from
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`the date they receive the notice—rather than 60 days from the date of mailing—up to a
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`maximum of 120 days after the notice is mailed. There will likely be delays that occur while
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`brokers attempt to identify and contact their clients who traded during the relevant periods,
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`which may be exacerbated by the ongoing pandemic. Class members should not be prejudiced by
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`such delays, and instead afforded a full 60 days from the date they receive the notice to consider
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`their right to opt out.10
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`CONCLUSION
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`Kraft respectfully requests that the Court modify the class notice to (1) include Kraft’s
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`proposed language concerning preservation; (2) include Kraft’s single sentence concerning the
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`9 Other courts have allowed also class members to opt-out online or via email. See, e.g., Swinton v.
`SquareTrade, Inc., No. 418CV00144SMRSBJ, 2019 WL 617791, at *16 (S.D. Iowa Feb. 14, 2019)
`(allowing opt-outs via website); Abarca v. Werner Enterprises, Inc., No. 8:14-CV-319-JFB-MDN,
`2018 WL 4354953, at *2 (D. Neb. Sept. 12, 2018) (allowing class members to opt out via email);
`Tadepalli v. Uber Techs., Inc., No. 15-CV-04348-MEJ, 2016 WL 1622881, at *4 (N.D. Cal. Apr. 25,
`2016) (allowing opt-outs via website); Spann v. J.C. Penney Corp., 314 F.R.D. 312, 331 (C.D. Cal.
`2016) (allowing opt-outs via website); cf. Sellers v. Sage Software, Inc., No. 1:17-CV-03614-ELR,
`2018 WL 5631106, at *5 (N.D. Ga. May 25, 2018) (allowing electronically signed consent forms for
`collective action under the FLSA).
`10 Kraft has met and conferred with Plaintiffs on the modifications sought in Section IV. Kraft
`understands Plaintiffs are considering Kraft’s proposal and the parties may be able to reach an
`agreement on electronic notice and the opt out period.
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`13
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`

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`Case: 1:15-cv-02937 Document #: 370 Filed: 07/14/20 Page 14 of 14 PageID #:12513
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`possibility that class members may have to participate in some form of discovery, (3) remove
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`Kraft’s name from the class website URL, and (4) allow class members to opt-out via email or
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`the class website and do so within 60 days of receiving the notice, up to a maximum of 120 days
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`after the notice is mailed.
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`Dated: July 14, 2020
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`Respectfully submitted,
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`KRAFT FOODS GROUP, INC. and
`MONDELĒZ GLOBAL LLC
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`/s/ Dean N. Panos
`Dean N. Panos
`J. Kevin McCall
`Nicole A. Allen
`Thomas E. Quinn
`JENNER & BLOCK LLP
`353 N. Clark Street
`Chicago, IL 60654-3456
`Telephone: (312) 222-9350
`
`Attorneys for Kraft Foods Group, Inc. and
`Mondelēz Global, LLC
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`14
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