Case: 1:16-cv-08637 Document #: 4746 Filed: 06/15/21 Page 1 of 25 PageID #:302831
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`IN THE UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF ILLINOIS
`EASTERN DIVISION
`
`
`
`Case No.: 1:16-cv-08637
`
`The Honorable Thomas M. Durkin
`
`
`IN RE BROILER CHICKEN ANTITRUST
`LITIGATION,
`
`
`This Document Relates To:
`
`THE DIRECT PURCHASER PLAINTIFF
`ACTION
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`
`
`
`
`
`
`DIRECT PURCHASER PLAINTIFFS’ MEMORANDUM IN SUPPORT OF MOTION
`FOR FINAL APPROVAL OF THE SETTLEMENTS WITH DEFENDANTS PILGRIM’S
`PRIDE CORP., TYSON FOODS, INC., TYSON CHICKEN, INC., TYSON BREEDERS,
`INC., AND TYSON POULTRY, INC.
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`I.
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`II.
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`TABLE OF CONTENTS
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`Page
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`INTRODUCTION ...............................................................................................................1
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`LITIGATION BACKGROUND .........................................................................................2
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`III.
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`SUMMARY OF THE SETTLEMENT NEGOTIATIONS AND TERMS .........................5
`
`A.
`
`B.
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`The Pilgrim’s Settlement .........................................................................................7
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`The Tyson Settlement ..............................................................................................7
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`IV.
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`THE SETTLEMENTS SATISFY THE STANDARD FOR FINAL APPROVAL ............8
`
`A.
`
`B.
`
`The Court-Approved Notice Program Satisfies Due Process and Has Been
`Fully Implemented ...................................................................................................9
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`The Settlements Are Fair, Reasonable, and Adequate, and Should Be
`Granted Final Approval .........................................................................................13
`
`1.
`
`2.
`
`3.
`
`4.
`
`5.
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`The Settlements Provide a Substantial Recovery to the
`Settlement Class .........................................................................................14
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`The Settlements Eliminate Significant Risk to a Class Facing
`Complex, Lengthy and Expensive Litigation ............................................15
`
`No Class Member Has Objected to Either of the Settlements ...................16
`
`The Settlements Resulted from Hard-Fought Arm’s Length
`Negotiations and Experienced Counsel Recommend Approval ................18
`
`The Stage of the Proceedings and Amount of Discovery Supports
`Final Approval ...........................................................................................19
`
`V.
`
`CONCLUSION ..................................................................................................................20
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`Case: 1:16-cv-08637 Document #: 4746 Filed: 06/15/21 Page 3 of 25 PageID #:302833
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`
`
`Cases
`
`TABLE OF AUTHORITIES
`
`
`
`Page(s)
`
`In re “Agent Orange” Prod. Liab. Litig.,
`818 F.2d 145 (2d Cir. 1987).......................................................................................................9
`
`Agretti v. ANR Freight Sys., Inc.,
`982 F.2d 242 (7th Cir. 1992) ...................................................................................................15
`
`Amchem Prods., Inc. v. Windsor,
`521 U.S. 591 (1997) ...................................................................................................................9
`
`Armstrong v. Bd. of Sch. Dirs. of City of Milwaukee,
`616 F.2d 305 (7th Cir. 1980) ...............................................................................................8, 13
`
`Bynum v. Dist. of Columbia,
`412 F. Supp. 2d 73 (D.D.C. 2006) ...........................................................................................17
`
`In re Cathode Ray Tube (CRT) Antitrust Litig.,
`No. 14-CV-2058 JST, 2015 WL 9266493 (N.D. Cal. Dec. 17, 2015)...............................17, 19
`
`City of Greenville v. Syngenta Crop Prot., Inc.,
`No. 3:10-CV-188, 2012 WL 1948153 (S.D. Ill. May 30, 2012) ...............................................9
`
`Depoister v. Mary M. Holloway Found.,
`36 F.3d 582 (7th Cir. 1994) .....................................................................................................13
`
`E.E.O.C. v. Hiram Walker & Sons, Inc.,
`768 F.2d 884 (7th Cir. 1985) .....................................................................................................8
`
`Gehrich v. Chase Bank USA, N.A.,
`316 F.R.D. 215 (N.D. Ill. 2016) ...............................................................................................20
`
`Great Neck Cap. Appreciation Inv. P’ship, L.P. v. PricewaterhouseCoopers, L.L.P.,
`212 F.R.D. 400 (E.D. Wis. 2002) ......................................................................................14, 18
`
`Isby v. Bayh,
`75 F.3d 1191 (7th Cir. 1996) .........................................................................................8, 13, 14
`
`Kleen Prod. LLC v. Int’l Paper Co.,
`No. 1:10-CV-05711, 2017 WL 5247928 (N.D. Ill. Oct. 17, 2017) .........................................19
`
`Kolinek v. Walgreen Co.,
`311 F.R.D. 483 (N.D. Ill. 2015) ...............................................................................................19
`
`Larsen v. Trader Joe’s Co.,
`No. 11-cv-05188-WHO, 2014 WL 3404531 (N.D. Cal. July 11, 2014) .................................16
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`
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`In re Lawnmower Engine Horsepower Mktg. & Sales Practices Litig.,
`733 F. Supp. 2d 997 (E.D. Wis. 2010) .....................................................................................16
`
`In re Linerboard Antitrust Litig.,
`292 F. Supp. 2d 631 (E.D. Pa. 2003) .......................................................................................18
`
`Mangone v. First USA Bank,
`206 F.R.D. 222 (S.D. Ill. 2001) .................................................................................................9
`
`Pallas v. Pac. Bell,
`No. C-89-2373 DLJ, 1999 WL 1209495 (N.D. Cal. July 13, 1999)........................................17
`
`Petrovic v. Amoco Oil Co.,
`200 F.3d 1140 (8th Cir. 1999) ...................................................................................................9
`
`Redman v. RadioShack Corp.,
`No. 11-C-6741, 2014 WL 497438 (N.D. Ill. Feb. 7, 2014) .....................................................13
`
`Rodriguez v. West Publ’g Corp.,
`563 F.3d 948 (9th Cir. 2009) ...................................................................................................18
`
`Schulte v. Fifth Third Bank,
`805 F. Supp. 2d 560 (N.D. Ill. 2011) .................................................................................17, 20
`
`Uhl v. Thoroughbred Tech. & Telecomms., Inc.,
`309 F.3d 978 (7th Cir. 2002) ...................................................................................................13
`
`United States v. Penn, et al.,
`20-cr-00152-PAB (D. Colo.) .....................................................................................................4
`
`United States v. Pilgrim’s Pride Corp.,
`20-cr-330-RM (D. Colo.) ...........................................................................................................4
`
`Wal-Mart Stores, Inc. v. Visa U.S.A., Inc.,
`396 F.3d 96 (2d Cir. 2005).......................................................................................................15
`
`Other Authorities
`
`4 Newberg on Class Actions, §§ 13:39, et seq.
`Final Judicial Approval of Proposed Class Action Settlements (5th ed.) ..................................9
`
`4 Newberg on Class Actions, § 13:43
`Presumptions governing approval process—Generally (5th ed.) ......................................14, 18
`
`Fed. R. Civ. P. 23(c)(2)(B) ........................................................................................................9, 10
`
`Fed. R. Civ. P. 23(e) ..................................................................................................................8, 13
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`I.
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`INTRODUCTION
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`The Direct Purchaser Plaintiffs (“DPPs”) hereby seek final approval of the settlements with
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`two additional groups of defendants: Pilgrim’s Pride Corp. (“Pilgrim’s”), and Tyson Foods, Inc.,
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`Tyson Chicken, Inc., Tyson Breeders, Inc., and Tyson Poultry, Inc. (collectively, “Tyson”)
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`(Pilgrim’s and Tyson are collectively referred to as the “Settling Defendants”). Under the
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`settlements (collectively, “Settlements” or “Settlement Agreements”), Pilgrim’s will pay
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`$75 million and Tyson will pay $79,340,000, collectively providing $154,340,000 to the
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`Settlement Class1 from Settling Defendants and bringing the total recovery to date to nearly $170
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`million. (See Declaration of Bobby Pouya in Support of Motion (“Pouya Decl.”) at ¶ 8.)
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`In granting preliminary approval of these Settlements, the Court found they fell within the
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`range of reasonableness and ordered notice to be provided to the Class members. (See Preliminary
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`Approval Order, Feb. 25, 2021, ECF No. 4341 (hereinafter referred to as “Preliminary Approval
`
`Order”) at 1.) Interim Co-Lead Counsel2 and JND Legal Administration, the Court-appointed
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`claims administrator (id. at 3), have executed the Notice Plan in accordance with the Court’s
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`Preliminary Approval Order. (Id. at 3-4.) This process has confirmed that the settlements with
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`Pilgrim’s and Tyson are fair, reasonable, and adequate, and should be granted final approval by
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`1 The term “Class” or “Settlement Class” is consistent with the definition of the term in the
`Court’s Preliminary Approval Order; “All persons who purchased Broilers directly from any of
`the Defendants or any co-conspirator identified in this action, or their respective subsidiaries or
`affiliates for use or delivery in the United States from at least as early as January 1, 2008 until
`December 20, 2019. Specifically excluded from the Settlement Class are the Defendants; the
`officers, directors or employees of any Defendant; any entity in which any Defendant has a
`controlling interest; and any affiliate, legal representative, heir or assign of any Defendant. Also
`excluded from this Settlement Class are any federal, state, or local governmental entities, any
`judicial officer presiding over this action and the members of his/her immediate family and judicial
`staff, and any juror assigned to this action.”
`
`2 Interim Co-Lead Counsel are Lockridge Grindal Nauen P.L.L.P. (“LGN”) and Pearson,
`Simon & Warshaw, LLP (“PSW”). See Order of October 14, 2016 (ECF No. 144).
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`the Court. The reaction of the Class members has been uniformly positive, with no member of the
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`Settlement Class objecting to the Settlements, and the vast majority of commerce that opted out of
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`the Settlements is on behalf of direct action plaintiffs who had filed their own lawsuits prior to the
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`Court’s preliminary approval order. (See Section IV.A infra.) Over 2,808 potential Class members
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`have filed claims to receive a portion of the proceeds from the Settlements. (See Declaration of
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`Jennifer M. Keough in Support of Motion for Final Approval (“Keough Decl.”) ¶ 27.) In the near
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`future, DPPs will move the Court to approve a distribution of the net settlement proceeds to
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`qualified claimants. (See Section IV.A infra; Pouya Decl. ¶ 21.)
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`The Settlements provide over $154 million in relief to the Class members while eliminating
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`the risk, uncertainty, and expense of continuing litigation, and preserving DPPs’ right to obtain
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`additional settlements or judgments against the numerous remaining Defendants. DPPs therefore
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`respectfully request that the Court grant final approval to the Settlements and enter final judgment.
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`II.
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`LITIGATION BACKGROUND
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`This is an antitrust class action against certain producers of Broilers.3 DPPs allege that
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`Defendants combined and conspired to fix, raise, maintain, or stabilize prices of Broilers sold in
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`the United States. DPPs allege that Defendants implemented their conspiracy in various ways,
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`including via coordinated supply restrictions, sharing competitively sensitive price and production
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`information, and otherwise manipulating Broiler prices.
`
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`3 Consistent with the operative Fifth Consolidated Amended Complaint, the term Broilers is
`defined in the Settlement Agreements as “chickens raised for meat consumption to be slaughtered
`before the age of 13 weeks, and which may be sold in a variety of forms, including fresh or frozen,
`raw or cooked, whole or in parts, or as a meat ingredient in a value added product, but excluding
`chicken that is grown, processed, and sold according to halal, kosher, free range, or organic
`standards.” (See ECF No. Nos. 3919 (Redacted) and 3935 (Unredacted); Pilgrim’s and Tyson
`Settlement Agreements § 1.d, ECF No. 4259-1 Exhibits A and B, respectively.)
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`DPPs commenced this litigation on September 2, 2016, when they filed a class action
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`lawsuit on behalf of all direct purchasers of Broilers in the United States. (ECF No. 1.) Other class
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`plaintiffs and direct action plaintiffs subsequently filed similar actions. On October 14, 2016, the
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`Court appointed the undersigned law firms as Direct Purchaser Plaintiffs’ Interim Co-Lead and
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`Liaison Counsel. (ECF No. 144.) After extensive briefing by the parties, on November 20, 2017
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`the Court denied Defendants’ Motions to Dismiss the DPPs’ First Consolidated Amended
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`Complaint. (ECF No. 541.) DPPs filed their operative Fifth Consolidated Amended Complaint on
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`October 23, 2020. (ECF No. Nos. 3919 (Redacted) and 3935 (Unredacted).) DPPs’ motion for
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`class certification was filed on October 30, 2020 (ECF No. 3962).
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`DPPs performed a thorough investigation and engaged in extensive discovery prior to
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`reaching the Settlements. These efforts commenced prior to the filing of DPPs’ initial complaint
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`and included pre-litigation investigation into Defendants’ conduct that formed the basis of the
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`DPPs’ complaints. (See Pouya Decl. ¶ 4.) In denying Defendants’ motions to dismiss, the Court
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`held that these “alleged factual circumstances plausibly demonstrate that [Defendants’] parallel
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`conduct was a product of a conspiracy.” (See ECF No. 541 at 18.) In discovery, DPPs obtained
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`responses to multiple sets of interrogatories, and received over 8 million documents in response to
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`their requests for production and third party subpoenas. (See Pouya Decl. ¶ 5.) DPPs, along with
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`other plaintiffs, have taken over 100 depositions of the Defendants and third parties. (Id. ¶ 6.)
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`DPPs have also provided responses to written discovery, produced documents, and appeared for
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`depositions noticed by the Defendants. (Id. ¶ 7.)
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`On June 21, 2019, the United States Department of Justice (“DOJ”) moved to intervene in
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`the civil case and stay the depositions of Defendants, pending the DOJ’s criminal investigation
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`into the Broiler industry. (ECF No. 2268.) On June 27, 2019, the Court granted an initial stay on
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`the depositions of Defendants until September 27, 2019. (ECF No. 2302.) On October 16, 2019,
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`the Court extended the stay on the depositions of Defendants (with certain exceptions) until June
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`27, 2020. (ECF No. 3153.) On June 2, 2020, the DOJ filed its initial indictment in the related
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`criminal proceeding, naming four individuals (all then-current or former executives of Defendants
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`in this civil case) as defendants. United States v. Penn, et al., 20-cr-00152-PAB (D. Colo.) (ECF
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`No. 1, June 2, 2020). On October 6, 2020, the DOJ filed a superseding indictment, naming as new
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`defendants six additional then current or former executives of Defendants in this civil case. Id.
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`(ECF No. 101, Oct. 6, 2020). Among the criminal defendants are three Pilgrim’s executives,
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`including Pilgrim’s former CEOs Jayson Penn and William Lovette. Furthermore, Pilgrim’s itself
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`pled guilty to criminal price-fixing charges and agreed to pay $110.5 million in criminal penalties.4
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`Meanwhile, Tyson announced that “it took appropriate actions to address the internal issues and
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`has been fully cooperating with the DOJ as part of its application for leniency under the DOJ’s
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`Corporate Leniency Program.”5
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`Prior to the Court’s ruling on Defendants’ motions to dismiss, Plaintiffs reached an “ice-
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`breaker” settlement with Defendant Fieldale Farms Corporation (“Fieldale”). Fieldale, a small
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`producer, agreed to pay $2.25 million, provide cooperation including attorney and witness
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`proffers, and produce certain documents to DPPs. (See Pouya Decl. ¶ 8.) The Court granted final
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`approval to the Fieldale settlement on November 18, 2018. (See ECF No. 1414.) Plaintiffs later
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`4 Pilgrim’s Announces Agreement with DOJ Antitrust Division, PILGRIM’S PRIDE CORP.
`(2020),
`https://ir.pilgrims.com/news-releases/news-release-details/pilgrims-announces-
`agreement-doj-antitrust-division (last visited Feb. 1, 2021). See also United States v. Pilgrim’s
`Pride Corp., 20-cr-330-RM (D. Colo.) (ECF No. 1, Oct. 13, 2020) (criminal information).
`
`5 Tyson Foods’ Statement on Department of Justice Indictment in Broiler Chicken
`Investigation, TYSON FOODS,
`INC.
`(2020),
`https://www.tysonfoods.com/news/news-
`releases/2020/6/tyson-foods-statement-department-justice-indictment-broiler-chicken (last visited
`Feb. 1, 2021).
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`reached settlements with Defendants Peco Foods, Inc. (“Peco”), George’s, Inc., George’s Farms,
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`Inc. (collectively, “George’s”), and Amick Farms, LLC (“Amick”). Like Fieldale, these three
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`Defendant groups are small producers. (See Pouya Decl. ¶ 8.) In addition to providing cooperation
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`to DPPs, Peco paid $4,964,600, George’s paid $4,097,000, and Amick paid $3,950,000. (See Id.)
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`The Court granted final approval of the Amick, Peco, and George’s settlements on October 27,
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`2020. (See ECF Nos. 3944 (Peco and George’s), 3945 (Amick).)
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`Thus, the Settlement Agreements with Tyson and Pilgrim’s constitute the third set of DPP
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`settlements in this case, and a third “step up” by market share point. (See Pouya Decl. ¶ 8.)
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`III.
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`SUMMARY OF THE SETTLEMENT NEGOTIATIONS AND TERMS
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`The Settlement Agreements with Pilgrim’s and Tyson were reached separately through
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`confidential, protracted, arm’s length settlement negotiations. (See Pouya Decl. ¶¶ 9-18.) The
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`Pilgrim’s settlement was the product of a negotiation process that commenced in December 2020.
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`(Id. ¶ 9.) The Tyson settlement was negotiated separately in a process that started in December
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`2019. (Id. ¶ 12.) The core settlement terms are substantially similar in each of the Agreements, and
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`the settlement amounts reflect the size and other factors affecting these Settling Defendants. Each
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`of the Settlements represents an increase—on a proportionate and gross basis—from the prior
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`settlements. (Id. ¶ 8.) Collectively the Settlements provide $154,340,000 in recovery to the
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`Settlement Class, and bring the total amount recovered by DPPs to $169,601,600. (Id.)
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`In addition to monetary relief, the Settling Defendants will: (1) cooperate with DPPs in a
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`manner that is consistent with the provisions of the Antitrust Criminal Penalty Enhancement and
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`Reform Act of 2004, if applicable; (2) provide an attorney proffer regarding the principal facts
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`known to Settling Defendants relevant to the alleged conduct at issue in this Action; (3) use
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`reasonable efforts to authenticate documents and assist DPPs to understand previously-produced
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`structured data, (4) producing live witnesses at trial; and (5) not oppose the DPPs’ depositions of
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`specifically-named current and former executives. (See Pilgrim’s Settlement § 10; Tyson
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`Settlement § 10.)
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`In exchange, the DPPs and the proposed Settlement Class will release certain Released
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`Claims (as defined in the Settlement Agreements) against the Released Parties (as defined in the
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`Settlement Agreements). (See id. §§ 14, 15.) The releases do not extend to other Defendants or to
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`unrelated claims that are not the subject matter of the lawsuit. (Id.)
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`Each of the Settlement Agreements contain an opt-out reduction mechanism. (See
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`Pilgrim’s Settlement § 19; Tyson Settlement § 21.) After completion of the settlement
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`administration process, the number of opt-outs, including opt-outs based on partial assignments,
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`was calculated for each of the Settlements. (See Keough Decl. ¶¶ 34, 35.) The Pilgrim’s Settlement
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`is not subject to reduction as set forth in the Agreement. (See Pouya Decl. ¶ 8.) The Tyson
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`Settlement is subject to a $660,000 reduction based on the opt-outs received during the settlement
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`administration process and the Tyson Settlement Agreement (see § 21) exceeding by 1.5% the
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`agreed upon threshold for a reduction between the parties. (See Pouya Decl. ¶ 8.) Thus, the total
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`amount paid by Tyson equals $79,340,000, and the combined total of the Settlements equals
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`$154,340,000. (See id. ¶ 8.)
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`Subject to the approval of the Court, the settlement amounts (with accrued interest) will be
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`used to: (1) pay for notice costs and costs incurred in the administration and distribution of the
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`Settlements; (2) pay taxes and tax-related costs associated with the escrow account for proceeds
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`from the Settlements; (3) make a distribution to Settlement Class Members in accordance with the
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`proposed plan of distribution; (4) pay attorneys’ fees to Counsel for the Settlement Class, as well
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`as costs and expenses, that may be awarded by the Court (see ECF Nos. 4550, 4551, 4552); and
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`(5) pay incentive awards to the named Plaintiffs (see id.).
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`A.
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`The Pilgrim’s Settlement
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`DPPs’ settlement negotiations with Pilgrim’s commenced in December 2020. (See Pouya
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`Decl. ¶ 9.) After discussions between counsel throughout December 2020, on January 5, 2021,
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`DPPs and Pilgrim’s engaged in a mediation with Professor Eric Green, a nationally renowned
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`mediator. (Id. ¶ 10.) The parties were unable to reach an agreement during the face-to-face
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`videoconference mediation session, but continued discussions and ultimately reached an
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`agreement. (Id.) Thereafter, the parties continued to negotiate (with the assistance of Professor
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`Green) regarding the settlement terms, ultimately executing the Pilgrim’s Settlement Agreement
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`on January 19, 2021. (See Pilgrim’s Settlement; see also Pouya Decl. ¶ 11.)
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`The Pilgrim’s Settlement requires Pilgrim’s to pay up to $75 million. (See Pilgrim’s
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`Settlement § 9.)
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`B.
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`The Tyson Settlement
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`DPPs’ settlement negotiations with Tyson commenced in December 2019. (See Pouya
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`Decl. ¶ 12.) After engaging in initial discussions the parties agreed to retain Judge Daniel
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`Weinstein (ret.), another nationally renowned mediator. The settlement negotiations with Tyson
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`were thorough and extensive. With the assistance of Judge Weinstein, DPPs and Tyson exchanged
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`mediation briefs, made presentations addressing the merits of the case, and exchanged settlement
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`offers and demands throughout the course of 2020. This process included numerous conferences
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`with Judge Weinstein and his team, a videoconference mediation, as well as other discussions. (Id.
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`¶¶ 13-15) None of these efforts resulted in a settlement, and there were times when it appeared
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`that the parties had reached an impasse. (Id.) On January 6, 2021, DPPs and Tyson attended another
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`videoconference mediation with Judge Weinstein. (Id. ¶ 14.) The parties were unable to reach an
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`agreement during the January 6, 2021 session; however, the parties continued to negotiate through
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`the mediator. (Id.) On Saturday, January 9, 2021, the parties reconvened via videoconference with
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`Judge Weinstein and, after hours of further negotiating, an agreement was reached. (Id. ¶ 15.)
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`Thereafter, the parties continued to negotiate regarding the settlement terms, ultimately executing
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`the Tyson Settlement Agreement on January 23, 2021. (See Tyson Settlement; see also Pouya
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`Decl. ¶ 16.)
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`The Tyson Settlement Agreement requires Tyson to pay up to $80 million. (See Tyson
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`Settlement § 9.)
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`IV.
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`THE SETTLEMENTS SATISFY THE STANDARD FOR FINAL APPROVAL
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`There is an overriding public interest in settling litigation, and this is particularly true in
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`class actions. See Isby v. Bayh, 75 F.3d 1191, 1196 (7th Cir. 1996) (“Federal courts naturally favor
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`the settlement of class action litigation.”); E.E.O.C. v. Hiram Walker & Sons, Inc., 768 F.2d 884,
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`888-89 (7th Cir. 1985), cert. denied, 478 U.S. 1004 (1986) (noting that there is a general policy
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`favoring voluntary settlements of class action disputes); Armstrong v. Bd. of Sch. Dirs. of City of
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`Milwaukee, 616 F.2d 305, 312 (7th Cir. 1980) (“It is axiomatic that the federal courts look with
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`great favor upon the voluntary resolution of litigation through settlement.”), overruled on other
`
`grounds, Felzen v. Andreas, 134 F.3d 873 (7th Cir. 1998). Class action settlements minimize the
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`litigation expenses of the parties and reduce the strain such litigation imposes upon already scarce
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`judicial resources. Armstrong, 616 F.2d at 313 (citing Cotton v. Hinton, 559 F.2d 1326, 1331 (5th
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`Cir. 1977)). However, a class action may be settled only with court approval. Fed. R. Civ. P. 23(e).
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`Any dismissal, compromise, or settlement of a class action is subject to court approval.
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`Rule 23 jurisprudence has led to a defined procedure and specific criteria for class action settlement
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`approval, namely: certification of a settlement class and preliminary approval of the proposed
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`settlement; dissemination of notice of the settlement to all affected class members, including an
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`opportunity to object to the proposed settlement; and a fairness hearing at which class members
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`may be heard regarding the settlement, and counsel may present evidence and argument
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`concerning the fairness, adequacy, and reasonableness of the settlement. See 4 Newberg on Class
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`Actions, §§ 13:39, et seq. Final Judicial Approval of Proposed Class Action Settlements (5th ed.).
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`This procedure safeguards class members’ due process rights and enables the Court to fulfill its
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`role as the guardian of class interests. See id.
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`A.
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`The Court-Approved Notice Program Satisfies Due Process and Has Been
`Fully Implemented
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`The Court-approved Notice Plan related to the Settlements has been successfully
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`implemented and Class members have been notified of the Settlements. When a proposed class
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`action settlement is presented for court approval, the Federal Rules require “the best notice that is
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`practicable under the circumstances,” and that certain specifically identified items in the notice be
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`“clearly and concisely state in plain, easily understood language.” Fed. R. Civ. P. 23(c)(2)(B). A
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`settlement notice is a summary, not a complete source, of information. See, e.g., Petrovic v. Amoco
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`Oil Co., 200 F.3d 1140, 1153 (8th Cir. 1999); In re “Agent Orange” Prod. Liab. Litig., 818 F.2d
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`145, 170 (2d Cir. 1987), cert. denied, 484 U.S. 1004 (1988); Mangone v. First USA Bank, 206
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`F.R.D. 222, 233 (S.D. Ill. 2001).
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`The Notice Plan approved by this Court (see Preliminary Approval Order at 1)—which
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`relies primarily on direct notice to Class members supplemented by publication notice—is
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`commonly used in class actions like this one.6 Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 617
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`(1997) (quoting Fed. R. Civ. P. 23(c)(2)); City of Greenville v. Syngenta Crop Prot., Inc., No.
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`6 The notice plan implemented here is substantially similar to that previously disseminated in
`this case with prior settlements. (See Order Approving Fieldale Notice Plan, ECF No. 980; Peco,
`George’s and Amick Preliminary Approval Order, ECF No. 3394 (approving the proposed notice
`plan); see also Pouya Decl. ¶ 20.)
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`3:10-CV-188, 2012 WL 1948153, at *4 (S.D. Ill. May 30, 2012) (same); Fed. R. Civ. P.
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`23(c)(2)(B). It constitutes valid, due, and sufficient notice to class members, and is the best notice
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`practicable under the circumstances. The content of the court-approved notice complies with the
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`requirements of Rule 23(c)(2)(b). Both the summary and long-form notice clearly and concisely
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`explained in plain English the nature of the action and the terms of the Settlements. (See Keough
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`Decl. ¶ 12.) The notices provided a clear description of who is a member of the Settlement Class
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`and the binding effects of Class membership. Id. They also explained how to exclude oneself from
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`the Settlement Class, how to object to the Settlement, and how to contact Interim Co-Lead Counsel
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`for the Settlement Class. Id. The notices also explained that they provided only a summary of the
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`Settlements, and that the Settlement Agreements, as well as other important documents related to
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`the litigation, are available online at www.broilerchickenantitrustlitigation.com. (See id.) In
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`addition, the information from that website, as well as the toll-free call-in number for the
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`Settlements, were available in both English and Spanish. (See id. ¶¶ 21, 24.) The notice packages
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`included a long-form notice and a pre-populated claim form containing the purchase information
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`(to the extent available) for each Settlement Class member, which allowed them to file claims with
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`minimum documentation. Settlement Class members were permitted to file an audit request form
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`and submit proof of purchase if they chose to challenge the pre-populated purchase amounts.
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`The Notice Plan was implemented by the Court-appointed settlement administrator, JND
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`Legal Administration. (See Preliminary Approval Order at 3.) Specifically, using customer
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`information obtained from Defendants, JND mailed 26,811 print notices and emailed 11,996
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`electronic notices to potential class members. (See Keough Decl. ¶¶ 12, 14.) JND also published
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`notice in the following industry print publications (or banner advertisements in digital media) on
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`the dates indicated: the April 2021 issue of Progressive Grocer, the April 2021 issue of Meat &
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`Poultry, the March 29, 2021 issue of Poultry Times, the April 2021 issue of Frozen & Refrigerated
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`Buyer, the April 2021 issue of Supermarket News, and the March/April 2021 issue of Winsight
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`Grocery Business; and
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`the
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`following
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`industry websites; www.progressivegrocer.com,
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`www.supermarketnews.com, www.winsightmedia.com, and www.shelbyreport.com (March 16,
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`2021 through April 12, 2021), www.fastcasual.com (March 18, 2021 through April 14, 2021), and
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`www.meatpoultry.com and www.poultrytimes.com (April 1, 2021 through April 30, 2021). (See
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`id. ¶¶ 18-19.) In addition, JND continues to maintain the case website, where Class members can
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`view and print important documents and obtain other information related to the litigation. (See id.
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`¶¶ 20-23.) The Settlement Notice documents informed Class members regarding the attorneys’
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`fees, costs, and incentive awards that would be sought by the class representatives and Interim Co-
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`Lead Counsel. A copy of Direct Purchaser Plaintiffs’ Motion for Interim Payment of Attorneys’
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`Fees, Reimbursement of Expenses, and Class Representative Incentive Awards filed on April 16,
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`2021 (ECF No. 4551) and supporting documents were posted on the case website. JND also
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`continues to maintain a toll-free call-in number to answer Class members’ questions. (See id. ¶¶
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`24-25.)
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`The Settlement Administrator reviewed and processed all requests for exclusion. (See
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`Keough Decl. ¶¶ 34-35.) This process included determining the timeliness and validity of