CASE 0:18-cv-01776-JRT-HB Doc. 1254 Filed 04/08/22 Page 1 of 26
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`UNITED STATES DISTRICT COURT
`DISTRICT OF MINNESOTA
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`
`
`IN RE PORK ANTITRUST
`LITIGATION
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`
`This Document Relates To:
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`COMMERCIAL AND
`INSTITUTIONAL INDIRECT
`PURCHASER PLAINTIFF ACTION
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`
`
`
`Case No. 18-cv-1776 (JRT/HB)
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`
`
`Memorandum in Support of Motion
`for Preliminary Approval of Class
`Action Settlement Between the
`Commercial and Institutional
`Indirect Purchaser Plaintiffs and
`Defendant Smithfield Foods, Inc.
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`

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`CASE 0:18-cv-01776-JRT-HB Doc. 1254 Filed 04/08/22 Page 2 of 26
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`Table of Contents
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`Page
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`Introduction ............................................................................................................................. 1
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`Background and Basic Settlement Terms ............................................................................ 1
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`Preliminary Approval of the Settlement Should be Granted ............................................ 7
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`The Proposed Settlement Is the Result of Arm’s-Length Negotiations ............. 8
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`The Settlement Agreement Achieves an Excellent Result for the Proposed
`Settlement Class, Particularly Given the Expense, Duration, and Uncertainty
`of Continued Litigation. ............................................................................................ 9
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`The Court Should Certify the Proposed Settlement Class .............................................. 13
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`
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`I.
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`II.
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`III.
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`IV.
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`A.
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`B.
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`A.
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`The Proposed Settlement Class Satisfies the Requirements of Rule 23(a) ....... 14
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`Numerosity ................................................................................................... 14
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`Commonality ................................................................................................ 14
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`Typicality ....................................................................................................... 15
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`1.
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`2.
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`3.
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`4.
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`Adequacy of Representation ...................................................................... 16
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`The Proposed Settlement Class Satisfies the Requirements of Rule
`23(b)(3) ....................................................................................................................... 16
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`The Court Should Allow CIIPPs to Provide a Proposed Notice Plan Later ............... 19
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`B.
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`V.
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`VI. Conclusion
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` ........................................................................................................................ 20
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`Table of Authorities
`
`
`Cases
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`Alpern v. UtiliCorp United, Inc., 84 F.3d 1525 (8th Cir. 1996) ........................................................ 15
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`Amchem Prods., Inc. v. Windsor, 521 U.S. 591 (1997) .......................................................... 13, 17, 18
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`Ark. Educ. Ass’n v. Bd. of Educ. of Portland, Ark. Sch. Dist., 446 F.2d 763 (8th Cir. 1971) ......... 14
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`Blades v. Monsanto Co., 430 F.3d 562 (8th Cir. 2005) ...................................................................... 15
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`Bryant v. Bonded Account Serv./Checking Recovery, 208 F.R.D. 251 (Minn. 2000) .......................... 17
`
`Califano v. Yamasaki, 442 U.S. 682 (1979) ....................................................................................... 18
`
`Custom Hair Design by Sandy v. Cent. Payment Co., LLC, 984 F.3d 595 (8th Cir. 2020) ............... 17
`
`DeBoer v. Mellon Mortg. Co., 64 F.3d 1171 (8th Cir. 1995) ...................................................... 14, 15
`
`Grunin v. Int’l House of Pancakes, 513 F.2d 114 (8th Cir. 1975) ....................................................... 9
`
`In re Ampicillin Antitrust Litig., 82 F.R.D. 652 (D.D.C. 1979) ....................................................... 12
`
`In re Cardizem CD Antitrust Litig., 218 F.R.D. 508 (E.D. Mich. 2003) ............................. 9, 10, 11
`
`In re Chambers Dev. Sec. Litig., 912 F. Supp. 822 (W.D. Pa. 1995) ................................................ 10
`
`In re Corrugated Container Antitrust Litig., 1981 WL 2093 (S.D. Tex. Jan. 27, 1981)............. 11, 12
`
`In re Farmers Ins. Exchange, Claims Representatives’ Overtime Pay Litig.,
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`481 F.3d 1119 (9th Cir. 2007) ............................................................................................. 10
`
`In re Hartford Sales Practices Litig., 192 F.R.D. 592 (D. Minn. 1999) ............................................. 14
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`In re Linerboard Antitrust Litig., 292 F. Supp. 2d 631 (E.D. Pa. 2003) ............................... 9, 11, 12
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`In re Packaged Ice Antitrust Litig., 2010 U.S. Dist. LEXIS 77645 (E.D. Mich. Aug. 2, 2010) .... 12
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`In re Packaged Ice Antitrust Litig., 2011 U.S. Dist. LEXIS 150427
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`(E.D. Mich. Dec. 13, 2011) .................................................................................................... 9
`
`In re Potash Antitrust Litig., 159 F.R.D. 682 (D. Minn. 1995) ........................................................ 17
`
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`In re Pressure Sensitive Labelstock Antitrust Litig., 584 F. Supp. 2d 697 (M.D. Pa. 2008) .............. 12
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`In re Rent-Way Sec. Litig., 305 F. Supp. 2d 491 (W.D. Pa. 2003) .................................................. 11
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`In re Uranium Antitrust Litig., 617 F.2d 1248 (7th Cir. 1980) ........................................................ 12
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`In re Warfarin Sodium Antitrust Litig., 391 F.3d 516 (3d Cir. 2004) ............................................... 11
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`In re Wireless Tel. Fed. Cost Recovery Fees Litig., 396 F.3d 922 (8th Cir. 2005) ................................. 8
`
`In re Zurn Pex Plumbing Prods. Liab. Litig., 2012 WL 5055810 (D. Minn. Oct. 18, 2012) .......... 19
`
`In re Zurn Pex Plumbing Prods. Liab. Litig., 2013 WL 716088 (D. Minn. Feb. 27, 2013) ........ 9, 18
`
`Jones v. Flowers, 547 U.S. 220 (2006) ................................................................................................. 19
`
`Lockwood Motors, Inc. v. Gen. Motors Corp., 162 F.R.D. 569 (D. Minn. 1995) .............................. 14
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`Martin v. Cargill, Inc., 295 F.R.D. 380 (D. Minn. 2013) .......................................................... 7, 8, 9
`
`Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306 (1950) .................................................. 19
`
`Paxton v. Union Nat’l Bank, 688 F.2d 552 (8th Cir. 1982) ............................................................. 16
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`Petrovic v. Amoco Oil Co., 200 F.3d 1140 (8th Cir. 1999) ................................................................ 19
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`Robbins v. Koger Props., Inc., 116 F.3d 1441 (11th Cir. 1997) .......................................................... 11
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`Sandusky Wellness Ctr., LLC v. Medtox Sci, Inc., 821 F.3d 992 (8th Cir. 2016) ............................. 17
`
`Smith v. ConocoPhillips Pipe Line Co., 801 F.3d 921 (8th Cir. 2015) ............................................... 13
`
`Van Horn v. Trickey, 840 F.2d 604 (8th Cir. 1988) ........................................................................... 7
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`White v. Nat’l Football League, 822 F. Supp. 1389 (D. Minn. 1993) ................................................ 8
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`Statutes & Rules
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`28 U.S.C. § 1715 .................................................................................................................................. 7
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`Fed. R. Civ. P. 23 ......................................................................................................................... passim
`
`Fed. R. Civ. P. 23(e)(2)........................................................................................................................ 7
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`Fed. R. Civ. P. 23(e)(2)(C) ................................................................................................................ 13
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`Other Authorities
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`Class Actions Fairness Act of 2005, 28 U.S.C. § 1715 ................................................................... 7
`
`Manual for Complex Litigation (Third) (1995) ............................................................................... 8
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` 4
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`
`
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` Newberg on Class Actions (4th ed. 2002) ......................................................................... 8, 9, 17
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`CASE 0:18-cv-01776-JRT-HB Doc. 1254 Filed 04/08/22 Page 6 of 26
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`
`I.
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`Introduction.
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`The Commercial and Institutional Indirect Purchaser Plaintiffs
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`(“CIIPPs”)1
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`respectfully request the Court’s preliminary approval of the settlement of their claims against
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`Smithfield Foods, Inc (“Smithfield”). The proposed settlement is the result of extensive arm’s
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`length negotiations and provides the CIIPPs with substantial monetary relief of $42,000,000
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`($42 million) as well as non-monetary relief like cooperation in the prosecution of claims
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`against the remaining, non-settling defendants.
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`The Court should grant preliminary approval of the proposed settlement because it is
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`well within the range of possible approval and is in the best interest of the class members. The
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`Court should also certify the proposed Settlement Class for settlement purposes. In a separate
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`motion, CIIPPs will ask the Court to approve a proposed plan for disseminating notice to the
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`Settlement Class and to schedule a final fairness hearing. At the final fairness hearing, Interim
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`Co-Lead Counsel will seek entry of a final order and judgment dismissing Smithfield and
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`retaining jurisdiction for implementation and enforcement of the settlement agreement.
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`II.
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`Background and Settlement Terms.
`
`This case represents the consolidation of separately filed putative class actions alleging
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`that Defendants engaged in a conspiracy to artificially constrict the supply of pork2 products
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`1 As used herein, “CIIPPs” shall mean the current named class representatives in the CIIPP
`case: Sandee’s Bakery; Francis T. Enterprises d/b/a Erbert & Gerbert’s; Joe Lopez, d/b/a
`Joe’s Steak and Leaf; Longhorn’s Steakhouse; The Grady Corporation; Mcmjoynt LLC d/b/a
`The Breakfast Joynt; Edley’s Restaurant Group, LLC; Basil Mt. Pleasant, LLC; Basil Charlotte,
`Inc.; Farah’s Courtyard Deli, Inc.; and Tri-Ten LLC.
`
` For this Settlement, “Pork” means porcine or swine products processed, produced or sold
`by Smithfield, or by any of the Defendants or their co-conspirators, including but not limited
`1
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`
` 2
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`

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`in the domestic market of the United States. The CIIPPs allege that the Defendants3 conspired
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`to constrain the supply, and fix the price, of pork from at least 2009 through the
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`commencement of the present action. (See CIIPP Fourth Consolidated and Amended
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`Complaint (Dkt. 808)). The CIIPPs allege that Defendants, through their co-conspirator, Agri
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`Stats, exchanged detailed, competitively sensitive, and closely guarded non-public information
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`about price, capacity, sales volume, and demand. (Id. ¶ 2). The CIIPPs allege that Agri Stats
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`provided highly sensitive “benchmarking” reports to most pork integrators, thereby allowing
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`competitors to compare their profits or performance against that of other companies. (Id. ¶
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`3). The effect of this anti-competitive exchange of non-public information allegedly allowed
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`pork integrators to control the supply and price of pork. (Id.) The named CIIPPs allege that
`
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`to: primals (including but not limited to loins, shoulders, picnics, butts, ribs, bellies, hams, or
`legs), trim or sub-primal products (including but not limited to backloins, tenderloins,
`backribs, boneless loins, boneless sirloins, riblets, chef’s prime, prime ribs, brisket, skirt,
`cushion, ground meats, sirloin tip roast, or hocks), further processed and value added porcine
`products (including, but not limited to bacon, sausage, lunch meats, further processed ham,
`or jerky products), offal or variety products (including, but not limited to hearts, tongues,
`livers, head products, spleens, kidneys, feet, stomach, bladder, uterus, snoot, ears, tail, brisket
`bone, intestines, jowls, neck bones or other bones, skin, lungs, glands, hair, or pet food
`ingredients), rendered product and byproducts (including, but not limited to, lard, grease, meat
`meal, bone meal, blood meal, or blood plasma), casings (including, but not limited to, mucosa),
`and carcasses. (See Settlement Agreement ¶ 1n, attached as Exhibit A to the Declaration of
`Shawn Raiter).
`
` Defendants include JBS USA Food Company, JBS USA Food Company Holdings, Clemens
`Food Group, LLC, The Clemens Family Corporation, Hormel Foods Corporation, Seaboard
`Foods LLC, Smithfield Foods, Inc., Triumph Foods, LLC, Tyson Foods, Inc. Tyson Prepared
`Foods, Inc., Tyson Fresh Meats, Inc., and Agri Stats, Inc.
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` 3
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`2
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`CASE 0:18-cv-01776-JRT-HB Doc. 1254 Filed 04/08/22 Page 8 of 26
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`they and the putative class members paid artificially inflated prices for pork during the Class
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`Period.4 (Id. ¶ 7).
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`On October 15, 2018, the Court appointed the undersigned as Interim Co-Lead Class
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`Counsel for the CIIPPs. (Dkt. 150). The Court granted Defendants’ initial motions to dismiss
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`Plaintiffs’ complaints, with leave to amend, in August 2019. (Dkt. 360). On October 16, 2020,
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`the Court denied Defendants’ motions to dismiss the CIIPPs Third Consolidated Amended
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`Complaint, except as to certain state-law claims. (Dkts. 519, 520). The CIIPPs filed their
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`Fourth Consolidated Amended Complaint on June 15, 2021. (Dkt. 808).
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`Unlike many civil antirust actions, these cases were brought without a formal antitrust
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`investigation by the United States Department of Justice and without the assistance of a
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`leniency applicant under the Department of Justice’s Corporate Leniency Program. Since filing
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`the first Complaint, the CIIPPs—as well as other Plaintiff classes and certain “Direct Action
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`Plaintiffs”—have continued their investigation and development of their case.
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`During the ongoing discovery and prosecution of this case, Interim Co-Lead Counsel
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`negotiated the proposed settlement with Smithfield. This is the second settlement the CIIPPs
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`have negotiated. Coupled with the CIIPPs’ earlier settlement with the JBS Defendants, this
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`settlement would bring the total monetary relief to $54,750,000 ($54.75 million). The Court
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`granted preliminary approval of the CIIPPs’ settlement with JBS on May 3, 2021 (Dkt. 767)
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`and granted final approval of that settlement on November 18, 2021. (Dkt. 1007). This
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`settlement with Smithfield has come after substantial adversarial litigation with Defendants in
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`4 “Class Period” means January 1, 2009 until the date of the order granting Preliminary
`Approval of the Settlement Agreement and Settlement Class (See Settlement Agreement ¶ 1c).
`3
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`this MDL and much investigation. The CIIPPs’ counsel was well-informed, and the Settlement
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`Agreement with Smithfield arose from arm’s-length and good-faith negotiations. The parties
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`negotiated for months before they reached agreement on the Settlement’s terms.
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`The Settlement Agreement defines the “Settlement Class” as:
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`All entities who indirectly purchased Pork from Defendants or co-
`conspirators or their respective subsidiaries or affiliates in the United
`States during the Class Period for their own business use in
`commercial food preparation.
`Specifically excluded from the Settlement Class are Defendants; the
`officers, directors or employees of any Defendant; the parent
`companies of any Defendant; the subsidiaries of any Defendant and
`any entity in which any Defendant has a controlling interest;
`purchasers of Pork that purchased Pork directly from any Defendant,
`including those that directly purchased Pork for resale in an
`unmodified and untransformed form; and any affiliate,
`legal
`representative, heir or assign of any Defendant. Also excluded from
`the 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, any juror assigned to
`this action.
`(Settlement Agreement ¶ 5).
`
`
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`Settlement Fund: Smithfield will pay $42,000,000 (forty-two million United States
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`dollars) to the CIIPP Settlement Class by paying, or causing to be paid, such sum into an
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`interest-bearing Escrow Account maintained by an escrow agent on behalf of the Settlement
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`Class. (Settlement Agreement ¶ 1u). From the Settlement Fund, and subject to Court approval,
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`Smithfield shall not object to Interim Co-Lead Counsel withdrawing up to $200,000 to pay
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`the costs for notice and for Preliminary and Final Approval of the Settlement Agreement. (Id.
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`¶ 6b). Those notice costs up to $200,000 are nonrefundable if, for any reason, the Settlement
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`Agreement is terminated according to its terms or is not finally approved by the Court. (Id.
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`¶ 6c). Interim Co-Lead Counsel may apply to the Court for a fee award, reimbursement of
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`4
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`incurred or anticipated expenses, and service awards to the representative CIIPPs to be paid
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`from the proceeds of the Settlement Fund. (Id. ¶ 14).
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`
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`Cooperation: Cooperation by Smithfield is a material term of the Settlement
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`Agreement, and Smithfield agrees to the following:
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`a. To the extent applicable during the pendency of the CIIPPs’ Actions in the In re Pork
`Antitrust Litigation, Smithfield shall contemporaneously provide to CIIPPs (a) any
`discovery responses, documents, or information it provides to any other plaintiff in the
`In re Pork Antitrust Litigation, and (b) any discovery responses, documents, or
`information it provides to government entities making substantially similar allegations
`regarding competition in the Pork industry.
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`b. Smithfield shall not object to CIIPPs participating in the depositions of up to five
`Smithfield witnesses, within the scope of discovery in the In re Pork Antitrust Litigation.
`
`c. Smithfield shall produce the structured data that has been requested by CIIPPs in
`discovery and agreed-to by Smithfield in the In re Pork Antitrust Litigation, based on the
`timing, scope, and manner that is agreed to by the parties or ordered by the Court
`during the course of the litigation. Smithfield further agrees to continue responding to
`CIIPPs’ questions in order to understand and interpret Smithfield’s structured data for
`the litigation.
`
`d. Smithfield agrees to make all good faith efforts to assist CIIPPs in obtaining the
`authentication and admissibility of Smithfield’s documents for purposes of summary
`judgment and/or trial.
`
`e. Smithfield agrees to make available to testify live at a single CIIPP trial the following:
`(a) one then-current Smithfield employee who can authenticate a specific set of
`documents (all of which CIIPPs will provide to Smithfield at least forty-five (45) days
`before jury selection starts), and (b) one then-current Smithfield employee who can
`serve as a fact witness on material fact issues on which that employee has personal
`knowledge to the extent those fact issues remain in dispute at the time of trial.
`
`f. This settlement does not prohibit CIIPPs from seeking phone records from third-party
`phone carriers relating to Smithfield’s current or former employees’ phone records but
`only for the time between January 1, 2008 and June 30, 2018 when those employees
`were employed by Smithfield.
`
`g. In the event that Smithfield does not complete its production of documents from
`currently agreed upon custodians and sources in the discovery process (i.e., Smithfield
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`5
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`settles with all plaintiffs), then Smithfield will agree to produce to CIIPPs any
`document already reviewed and marked responsive and non-privileged.
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`(Settlement Agreement ¶ 11).
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`Released Claims: In consideration for the $42,000,000 payment and cooperation, the
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`CIIPPs agree, upon Final Judgment, to release Smithfield from:
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`any and all claims, demands, actions, suits, and causes of action, whether
`statutory, administrative, or common-law, whether at law or in equity, whether
`seeking injunctive relief or money damages, whether class, individual, or
`otherwise in nature (whether or not any member of the Settlement Class has
`objected to the Settlement Agreement or makes a claim upon or participates in
`the Settlement Fund, whether directly, representatively, derivatively or in any
`other capacity) that the Releasing Parties ever had, now have, or hereafter can,
`shall, or may ever have, that exist as of the date of the order granting Preliminary
`Approval, on account of, or in any way arising out of, any and all known and
`unknown, foreseen and unforeseen, suspected or unsuspected, actual or
`contingent, liquidated or unliquidated claims, injuries, losses, damages, and the
`consequences thereof that have been asserted, or could have been asserted,
`under federal or state law in any way arising out of or relating in any way to the
`indirect purchase of Pork produced, processed or sold by Smithfield or any of
`the Defendants or their co-conspirators, and purchased indirectly by the
`Releasing Parties (the “Released Claims”).
`
`(Id. ¶ 15). The Released Claims, however, do not include:
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`(i) claims asserted against any Defendant or co-conspirator other than the
`Smithfield Released Parties; (ii) any claims made by direct purchasers of Pork as
`to such direct purchases; (iii) any claims made by consumers that are indirect
`purchasers of Pork for their personal use; (iv) any claims made by any state,
`state agency, or instrumentality or political subdivision of a state as to
`government purchases of Pork; (v) claims wholly unrelated to the allegations in
`the Actions involving any negligence, personal injury, breach of contract,
`bailment, failure to deliver lost goods, damaged or delayed goods, product
`defect, or securities claim relating to Pork; (vi) claims concerning any product
`other than Pork; (vii) claims under laws other than those of the United States
`relating to purchases of Pork made outside of the United States; and (viii)
`damage claims under the state or local laws of any jurisdiction other than an
`Indirect Purchaser State.
`
`
`(Id.)
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`6
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`Termination: The Settlement provides either party the right to terminate the
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`Settlement Agreement upon the occurrence of specified conditions, including if the Court
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`does not approve the Settlement Agreement, declines to enter a Preliminary Approval Order,
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`does not enter an Order of Final Approval and a Final Judgment, if the Court approves the
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`Settlement Agreement in a materially modified form, or if the Court does enter a Final Approval
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`Order and Final Judgment but such Order and Judgment is reversed on appeal. (Id. ¶ 20a). In
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`addition, the Settlement Agreement provides Smithfield with the unilateral right to terminate
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`the Settlement Agreement in accordance with the terms of a Supplemental Agreement—as set
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`forth in a confidential letter, which may only be provided for in camera review upon the Court’s
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`request—within ten days of Smithfield receiving notice that Settlement Class Members who
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`meet certain criteria excluded themselves from the Settlement Class. (Id. ¶ 20b).
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`The Settlement Agreement also requires Smithfield—withing ten days of filing the
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`Settlement Agreement with the Court in connection with the motion for preliminary
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`approval—to submit all materials required to be sent to appropriate Federal and State officials
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`pursuant to the Class Action Fairness Act of 2005, 28 U.S.C. § 1715. (Id. ¶ 24).
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`III. Preliminary Approval Should be Granted.
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`When parties propose to settle a class action, the Court must review the settlement to
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`ensure that it is “fair, reasonable, and adequate.” Fed. R. Civ. P. 23(e)(2). A district court has
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`broad discretion in evaluating a class-action settlement. Van Horn v. Trickey, 840 F.2d 604,
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`606–07 (8th Cir. 1988). Review of a proposed class-action settlement typically proceeds in two
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`stages. Martin v. Cargill, Inc., 295 F.R.D. 380, 383 (D. Minn. 2013). At the preliminary approval
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`stage, the court determines whether the settlement is within the range of possible approval
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`7
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`and whether class members should be notified of the terms of the proposed settlement.5 White
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`v. Nat’l Football League, 822 F. Supp. 1389, 1416 (D. Minn. 1993). The purpose of a court’s
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`preliminary evaluation of proposed settlements is simply to determine whether it is within the
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`range of reasonableness and, thus, whether notice to the class of the terms and conditions of
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`the settlement, and scheduling a formal fairness hearing, are worthwhile. 4 Newberg on Class
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`Actions § 11.26.
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`A proposed settlement agreement should be preliminary approved if “the preliminary
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`evaluation of the proposed settlement does not disclose grounds to doubt its fairness or other
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`obvious deficiencies . . . and [the settlement] appears to fall within the range of possible
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`approval.” Manual for Complex Litigation (Third) § 30.41 at 237 (1995). “The policy in federal
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`court favoring the voluntary resolution of litigation through settlement is particularly strong
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`in the class action context.” White, 822 F. Supp. 2d at 1416. The proposed settlement between
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`the CIIPPs and Smithfield should be granted preliminary approval because the settlement is
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`well within the range of reasonableness and possible approval.
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`A. The Proposed Settlement Agreement is the Result of Arm’s-Length
`Negotiations.
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`Courts adhere to “an initial presumption of fairness when a proposed class settlement,
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`which was negotiated at arm’s length by counsel for the class, is presented for court approval.”
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`5 In making a final determination of settlement approval, the district court ultimately is required
`to consider four factors: (1) the merits of the plaintiff’s case, weighed against the terms of the
`settlement; (2) the defendant’s financial condition; (3) the complexity and expense of further
`litigation; and (4) the amount of opposition to the settlement. In re Wireless Tel. Fed. Cost Recovery
`Fees Litig., 396 F.3d 922, 931 (8th Cir. 2005). But, at the preliminary approval stage, “the fair,
`reasonable and adequate standard is lowered, with emphasis only on whether the settlement is
`within the range of possible approval due to an absence of any glaring substantive or procedural
`deficiencies.” Martin, 295 F.R.D. at 383 (quotation omitted).
`8
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`4 Newberg on Class Actions § 11.41 (4th ed. 2005) (collecting cases); see also Grunin v. Int’l
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`House of Pancakes, 513 F.2d 114, 123 (8th Cir. 1975). The preliminary determination establishes
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`a presumption of fairness when a settlement “has been negotiated at arm’s length, discovery
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`is sufficient, [and] the settlement proponents are experienced in similar matters.” In re Zurn
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`Pex Plumbing Prods. Liab. Litig., 08-MDL-1958 (ADM/AJB), 2013 WL 716088, at *6 (D. Minn.
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`Feb. 27, 2013). The court gives “great weight” to and may rely on the judgment of experienced
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`counsel in its evaluation of a proposed settlement. Id.
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`At the preliminary approval stage, “the fair, reasonable and adequate standard is
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`lowered, with emphasis only on whether the settlement is within the range of possible approval
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`due to an absence of any glaring substantive or procedural deficiencies.” Martin, 295 F.R.D. at
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`383 (quotation omitted). The Settlement here is within the range of possible approval because
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`there are no glaring substantive or procedural deficiencies. The Settlement Agreement is the
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`product of extensive and vigorous arm’s-length negotiations. The CIIPPs have developed and
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`assessed both their claims and Smithfield’s defenses. The CIIPPs and Smithfield are
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`represented by experienced counsel, and the Settlement was reached after years of litigation.
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`B. The Settlement Agreement Achieves an Excellent Result for the Proposed
`Settlement Class, Particularly Given the Expense, Duration, and Uncertainty
`of Continued Litigation.
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`Antitrust class actions are “arguably the most complex action(s) to prosecute. The legal
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`and factual issues involved are always numerous and uncertain in outcome.” In re Packaged Ice
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`Antitrust Litig., Case No. 08-MDL-01952, 2011 U.S. Dist. LEXIS 150427, at *76 (E.D. Mich.
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`Dec. 13, 2011) (quoting Linerboard, 292 F. Supp. at 639); see also In re Cardizem CD Antitrust
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`Litig., 218 F.R.D. 508, 533 (E.D. Mich. 2003) (“Moreover, the complexity of this case cannot
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`be overstated. Antitrust class actions are inherently complex”). Motions have already been
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`vigorously contested, and the discovery process has been and will be complex.6
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`Smithfield has asserted various defenses, and a jury trial might well turn on close
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`questions of proof, many of which would be the subject of complicated expert testimony,
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`particularly regarding damages, making the outcome of such trial uncertain for both parties.
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`See, e.g., Cardizem, 218 F.R.D. at 523 (in approving settlement, noting that “the prospect of a
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`trial necessarily involves the risk that Plaintiffs would obtain little or no recovery and that “no
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`matter how confident trial counsel may be, they cannot predict with 100% accuracy a jury’s
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`favorable verdict, particularly in complex antitrust litigation”); Packaged Ice, 2011 U.S. Dist.
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`LEXIS 17255, at *53-54 (noting the “undeniable inherent risks” in antitrust class action
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`litigation including “whether the class will be certified and upheld on appeal, whether the
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`conspiracies as alleged in the Complaint can be established, whether Plaintiffs will be able to
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`demonstrate class wide antitrust impact and ultimately whether Plaintiffs will be able to prove
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`damages”). Id. Given this uncertainty, “[a] very large bird in the hand in this litigation is surely
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`worth more than whatever birds are lurking in the bushes.” In re Chambers Dev. Sec. Litig., 912
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`F. Supp. 822, 838 (W.D. Pa. 1995).
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`Moreover, given the stakes involved, an appeal is nearly certain to follow regardless of
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`the outcome at trial. This creates additional risk, as judgments following trial may be
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`overturned on appeal. See, e.g., In re Farmers Ins. Exchange, Claims Representatives’ Overtime Pay
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`Litig., 481 F.3d 1119 (9th Cir. 2007) ($52.5 million class action judgment following trial
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`6 Because Interim Co-Lead Class Counsel may have to litigate against other defendants
`through trial and appeal, their duties preclude a more detailed discussion of the potential
`litigation risks.
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`CASE 0:18-cv-01776-JRT-HB Doc. 1254 Filed 04/08/22 Page 16 of 26
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`reversed on appeal); Robbins v. Koger Props., Inc., 116 F.3d 1441 (11th Cir. 1997) (jury verdict of
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`$81 million for plaintiffs reversed and judgment entered for defendant). And even if class
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`members were willing to assume all of the litigation risks, the passage of time would introduce
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`still more risks in terms of appeals and possible changes in the law that would, in light of the
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`time value of money, make future recoveries less valuable than recovery today. See In re
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`Warfarin Sodium Antitrust Litig., 391 F.3d 516, 536 (3d Cir. 2004) (“[I]t was inevitable that post-
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`trial motions and appeals would not only further prolong the litigation but also reduce the
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`value of any recovery to the class.”); In re Rent-Way Sec. Litig., 305 F. Supp. 2d 491, 501 (W.D.
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`Pa. 2003) (“[A] future recovery, even one in excess of the proposed Settlement, may ultimately
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`prove less valuable to the Classes than receiving the benefits of the proposed Settlement at
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`this time”). Hence, “the certain and immediate benefits to the Class represented by the
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`Settlement outweigh the possibility of obtaining a better result at trial, particularly when
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`factoring in the additional expense and long delay inherent in prosecuting this complex
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`litigation through trial and appeal.” Cardizem, 218 F.R.D. at 525.
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`Against this background, a settlement providing the substantial benefits afforded here
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`represents an excellent result for the members of the proposed Settlement Class. S