throbber
CASE 0:18-cv-01776-JRT-HB Doc. 542 Filed 12/01/20 Page 1 of 28
`
`UNITED STATES DISTRICT COURT
`DISTRICT COURT OF MINNESOTA
`
`
`IN RE PORK ANTITRUST
`LITIGATION
`
`
`This Document Relates To:
`
`THE DIRECT PURCHASER
`PLAINTIFF ACTION
`
`
`
`
`
`
`
`
`
`Case No. 18-cv-01776 (JRT-HB)
`
`MEMORANDUM OF POINTS
`AND AUTHORITIES IN
`SUPPORT OF MOTION FOR
`PRELIMINARY APPROVAL OF
`THE CLASS ACTION
`SETTLEMENT BETWEEN
`DIRECT PURCHASER
`PLAINTIFFS AND DEFENDANT
`JBS
`
`944653.7
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`CASE 0:18-cv-01776-JRT-HB Doc. 542 Filed 12/01/20 Page 2 of 28
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`TABLE OF CONTENTS
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`Page
`
`I.
`
`II.
`
`III.
`
`INTRODUCTION ...............................................................................................................1
`
`LITIGATION BACKGROUND .........................................................................................1
`
`THE PROPOSED SETTLEMENT MEETS THE STANDARDS FOR
`PRELIMINARY APPROVAL ............................................................................................4
`
`A.
`
`B.
`
`The Proposed Settlement Is the Result of Arm’s-Length Negotiations ...................6
`
`The Settlement Provides Significant Relief to the Settlement Class and
`Should be Preliminarily Approved by the Court .....................................................8
`
`IV.
`
`THE COURT SHOULD CERTIFY THE PROPOSED SETTLEMENT CLASS ............10
`
`A.
`
`The Proposed Settlement Class Satisfies the Requirements of Rule 23(a) ............11
`
`1.
`
`2.
`
`3.
`
`4.
`
`The Class is Sufficiently Numerous ..........................................................11
`
`Questions of Law and Fact Are Common to the Settlement Class ............12
`
`Plaintiffs’ Claims are Typical of Those of the Settlement Class ...............12
`
`Plaintiffs and Their Counsel Will Adequately Represent the
`Interests of the Class ..................................................................................13
`
`B.
`
`The Proposed Settlement Class Satisfies the Requirements of Rule
`23(b)(3) ..................................................................................................................15
`
`V.
`
`THE COURT SHOULD APPROVE THE PROPOSED NOTICE PLAN .......................17
`
`VI.
`
`THE COURT SHOULD SCHEDULE A FINAL FAIRNESS HEARING ......................20
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`VII. CONCLUSION ..................................................................................................................22
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`CASE 0:18-cv-01776-JRT-HB Doc. 542 Filed 12/01/20 Page 3 of 28
`
`TABLE OF AUTHORITIES
`
`
`
`Page(s)
`
`Cases
`
`Alpern v. UtiliCorp United, Inc.,
`84 F.3d 1525 (8th Cir. 1996) ...................................................................................................13
`
`Amchem Prods., Inc. v. Windsor,
`521 U.S. 591 (1997) ...............................................................................................10, 15, 16, 17
`
`Blades v. Monsanto Co.,
`430 F.3d 562 (8th Cir. 2005) ...................................................................................................12
`
`In re Broiler Chicken Antitrust Litig.,
`1:16-cv-08637, ECF No. 3394 (N.D. Ill. Jan. 8, 2020) .........................................................20
`
`City of Greenville v. Syngenta Crop Prot.,
`No. 3:10-CV-188, 2012 WL 1948153 (S.D. Ill. May 30, 2012) .............................................18
`
`In re Corrugated Container Antitrust Litig.,
`643 F.2d 195 (5th Cir. 1981) ...................................................................................................14
`
`DeBoer v. Mellon Mortg. Co.,
`64 F.3d 1171 (8th Cir. 1995) .........................................................................................7, 13, 20
`
`Eisen v. Carlisle & Jacquelin,
`417 U.S. 156 (1974). Notice ....................................................................................................18
`
`In re Emp. Benefit Plans Sec. Litig.,
`No. 3-92-708, 1993 WL330595 (D. Minn. June 2, 1993) .........................................................6
`
`Grier v. Chase Manhattan Auto Fin. Co.,
`No. A.99-180, 2000 WL175126 (E.D. Pa. Feb. 16, 2000) ........................................................6
`
`Gries v. Standard Ready Mix Concrete, L.L.C.,
`252 F.R.D 479 (N.D. Iowa 2008) ............................................................................................11
`
`Grunin v. Int’l House of Pancakes,
`513 F.2d 114 (8th Cir. 1975) .................................................................................................5, 6
`
`Huyer v. Wells Fargo & Co.,
`295 F.R.D. 332 (S.D. Iowa 2016) ............................................................................................12
`
`Kohen v. Pac. Inv. Mgmt. Co. LLC,
`571 F.3d 672 (7th Cir. 2009) ...................................................................................................14
`
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`In re Monosodium Glutamate Antitrust Litig.,
`205 F.R.D. 229 (D. Minn. 2001)..............................................................................................10
`
`Paper Sys. Inc. v. Nippon Paper Indus. Co.,
`281 F.3d 629 (7th Cir. 2002) .....................................................................................................9
`
`In re Potash Antitrust Litig.,
`159 F.R.D. 682, 693 (D. Minn. 1995)......................................................................................15
`
`Petrovic v. Amoco Oil Co.,
`200 F.3d 1140 (8th Cir. 1999) .................................................................................7, 17, 18, 20
`
`Petrovic v. Amoco Oil Co.,
`200 F.3d 1140 (8th Cir. 1999) .................................................................................7, 17, 18, 20
`
`Richter v. Bowen,
`669 F. Supp. 275 (N.D. Iowa 1987) .........................................................................................11
`
`Sullivan v. DB Invs.,
`667 F.3d 273 (3d Cir. 2011).....................................................................................................16
`
`Texas Indus., Inc. v. Radcliff Materials, Inc.,
`451 U.S. 630 (1981) ...................................................................................................................9
`
`Van Horn v. Trickey,
`840 F.2d 604 (8th Cir. 1988) .....................................................................................................5
`
`In re Vitamins Antitrust Litig.,
`209 F.R.D. 251 (D.D.C. 2002) .................................................................................................15
`
`Welsch v. Gardenbring,
`667 F. Supp. 1284 (D. Minn. 1987) ...........................................................................................6
`
`White v. Nat’l Football League,
`822 F. Supp. 1389 (D. Minn. 1993) .....................................................................................5, 10
`
`White v. Nat’l Football League,
`836 F. Supp. 1458 (D. Minn. 1993) ...........................................................................................6
`
`In re Zurn Pex Plumbing Prods. Liab. Litig.,
`No. 08-MDL-1958, 2012 WL 5055810 (D. Minn. Oct. 18, 2012) ............................................5
`
`In re Zurn Pex Plumbing Prods. Liab. Litig.,
`No. 08-MDL-1958, 2013 WL 716088 (D. Minn. Feb. 27, 2013) ..............................................6
`
`
`
`
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`Statutes & Rules
`
`15 U.S.C. § 1 ............................................................................................................................2, 3, 9
`
`28 U.S.C. § 1715, et seq.................................................................................................................22
`
`Fed. R. Civ. P. 23, et seq. ....................................................................................................... passim
`
`
`
`Other Authorities
`
`Manual for Complex Litigation (Fourth) (2004) .......................................................................5, 17
`
`2 Newberg on Class Actions (3d ed. 1992) ...............................................................................5, 10
`
`4 Newberg on Class Actions (4th ed. 2002) ............................................................................16, 17
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`
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`I.
`
`INTRODUCTION
`
`The Direct Purchaser Plaintiffs (“DPPs”) in this antitrust class action respectfully
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`move the Court to preliminarily approve a proposed settlement of their claims against
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`Defendant JBS.1 While this is the first “ice-breaker” settlement in this litigation, it provides
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`the Settlement Class with significant and substantial relief. Pursuant to the Settlement
`
`Agreement, JBS will pay $24,500,000 in monetary relief and will provide material
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`cooperation to DPPs. As discussed in this memorandum, the Settlement Agreement is the
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`product of protracted arm’s-length settlement negotiations with the assistance of an
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`experienced and nationally-renowned mediator, provides substantial monetary and non-
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`monetary relief to the DPP Settlement Class, and should be granted preliminary approval
`
`because it falls well within the range of possible approval. The DPPs further request that
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`the Court certify the proposed Settlement Class for settlement purposes, approve the
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`proposed plan for disseminating notice to the class, and set a schedule for the Final Fairness
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`Hearing of the Settlement. At the Final Fairness Hearing, Interim Co-Lead Class Counsel
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`will request entry of a final order and judgment dismissing JBS and retaining jurisdiction
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`for the implementation and enforcement of the Settlement Agreement.
`
`II.
`
`LITIGATION BACKGROUND
`
`This case represents the consolidation of multiple putative class actions and direct
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`purchaser actions alleging a conspiracy to fix, raise and stabilize the price of Pork in the
`
`
`1 Unless otherwise noted, all capitalized terms shall have the same meaning as in the
`Settlement Agreement (also referred to herein as “Settlement”), which is filed concurrently
`herewith as Exhibit A, to the Declaration of W. Joseph Bruckner (“Bruckner Decl.”).
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`United States. There are three categories of class action plaintiffs in this litigation, all of
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`whom allege that they purchased Pork2 products in the United States: DPPs, Consumer
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`Indirect Purchaser Plaintiffs, and Commercial and Institutional Indirect Purchaser
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`Plaintiffs.
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`DPPs allege that Defendants3 conspired to restrain production and fix the price of
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`Pork in the United States in violation of the Sherman Act, 15 U.S.C. § 1. DPPs allege that
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`the Pork industry has significant market concentration: between 1988 and 2015, the top
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`four Pork integrators (Smithfield, Tyson, JBS, and Hormel) increased their market share
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`from 34 percent in 1988 to just under 70 percent by 2015. See DPP Third Consolidated and
`
`
`2 As used herein, “Pork” means porcine or swine products processed, produced or sold
`by JBS, or by any of the Defendants or their co-conspirators, including but not limited to:
`primals (including but not limited to loin s, 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, chefs 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 ¶ 1.l.
`
`3 As defined in the Settlement Agreement, “Defendants” means JBS USA Food
`Company, JBS USA Food Company Holdings, Clemens Food Group, LLC, The Clemens
`Family Corporation, Hormel Foods Corporation and Hormel Foods, LLC, Indiana Packers
`Corporation, Mitsubishi Corporation (Americas), Seaboard Foods LLC, Seaboard
`Corporation, Smithfield Foods, Inc., Triumph Foods, LLC, Tyson Foods, Inc. Tyson
`Prepared Foods, Inc., Tyson Fresh Meats, Inc., and Agri Stats, Inc. See Settlement
`Agreement ¶ 1.e.
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`Amended Complaint (“TCAC” or “Complaint”) (ECF No. 431) ¶ 84. DPPs allege that this
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`includes JBS’s acquisition of Cargill’s Pork business in 2015, which resulted in JBS
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`moving from the fourth largest producer to the second largest producer at the time. Id. ¶
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`85.
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`DPPs allege that any single Defendant acting independently lacked sufficient
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`market power to restrain production and increase prices. TCAC ¶¶ 89-90. However, DPPs
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`allege that beginning no later than 2009 Defendants began sharing competitively sensitive
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`and confidential information with each other through Agri Stats, a data sharing service. Id.
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`¶¶ 2-4, 35-66. DPPs allege that by participating in Agri Stats, vertically integrated Pork
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`producers shared confidential information concerning production levels, short and long-
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`term production capacity, costs, profits, and sales. Id. While data in the reports purports to
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`be anonymous, many are organized by company and facility with “such detailed figures
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`covering every aspect of Pork production and sales that producers can accurately identify
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`the companies behind the metrics,” using, for example “unique but recurring data points.”
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`Id. ¶ 60. DPPs allege that, through their coordinated conduct, Defendants collectively had
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`sufficient market power to control supply and increase profits. Id. ¶¶ 82-95. DPPs allege
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`that Defendants’ collusion achieved its intended result; after years of increasing production
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`prior to the onset of the conspiracy, the Pork industry cut production in a coordinated
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`fashion and, as Defendants intended, an unprecedented upswing in prices followed. Id. ¶¶
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`119-180.
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`The DPP class action lawsuit was filed on June 29, 2018 and consolidated before
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`Chief Judge John R. Tunheim in this Court. Thereafter, the Court appointed the
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`undersigned as Interim Co-Lead Class Counsel for the DPPs. ECF No. 149. Defendants
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`moved to dismiss all Plaintiffs’ complaints. In August 2019, the Court granted their
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`motions and granted Plaintiffs leave to amend. ECF No. 360. DPPs amended their
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`complaint, and on October 16, 2020, the Court largely denied Defendants’ motions to
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`dismiss. ECF No. 519, amended October 20, 2020, ECF No. 520.
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`Unlike many other civil antitrust actions, this case was developed and brought
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`without the benefit of a formal antitrust investigation by the U.S. Department of Justice or
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`the assistance of a leniency applicant under the Department of Justice’s Corporate
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`Leniency Program. See Corporate Leniency Policy, U.S. Dep’t of Justice,
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`https://www.justice.gov/atr/corporate-leniency-policy. Since the initial complaint was
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`filed, DPPs have continued their factual investigation into the conspiracy alleged in their
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`complaint, and since the Court has largely denied Defendants’ motions to dismiss
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`Plaintiffs’ complaints, DPPs are pressing to set the parameters for discovery.
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`As part of their ongoing prosecution, Interim Co-Lead Class Counsel negotiated the
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`ice-breaker Settlement with JBS, the terms of which are detailed in this brief and the
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`supporting documents.
`
`III. THE PROPOSED SETTLEMENT MEETS THE STANDARDS FOR
`PRELIMINARY APPROVAL
`
`Parties proposing to settle a class action must seek approval of the settlement from
`
`the court. Fed. R. Civ. P. 23(e). Federal Rule of Civil Procedure (“Rule”) 23(e)
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`contemplates a sequential process for courts evaluating class action settlements. At this
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`preliminary approval stage, the court determines whether the settlement is within the range
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`of possible approval and whether class members should be notified of the terms of the
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`proposed settlement. White v. Nat’l Football League, 822 F. Supp. 1389, 1399 (D. Minn.
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`1993); 2 Newberg on Class Actions, § 11.24 (3d ed. 1992) (“The first step in district court
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`review of a class action settlement is a preliminary, pre-notification hearing to determine
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`whether the proposed settlement is ‘within the range of possible approval.’”). Generally,
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`before directing notice to the class members, a court makes a preliminary evaluation of the
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`proposed class action settlement pursuant to Rule 23(e). See Manual For Complex
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`Litigation, (Fourth) § 21.632 (2004).
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`If the court preliminarily approves the settlement and authorizes notice to the class,
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`and once the class has had the opportunity to consider the settlement, the court must decide
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`whether to grant final approval of the settlement as “fair, reasonable and adequate.” Fed.
`
`R. Civ. P. 23(e); see also, e.g., Grunin v. Int’l House of Pancakes, 513 F.2d 114, 123 (8th
`
`Cir. 1975). The court has broad discretion in evaluating a class action settlement. Van Horn
`
`v. Trickey, 840 F.2d 604, 606-07 (8th Cir. 1988). The law strongly favors resolving
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`litigation through settlement, particularly in class actions. White, 822 F. Supp. at 1416
`
`(“The policy in federal court favoring the voluntary resolution of litigation through
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`settlement is particularly strong in the class action context.”) (citation omitted); In re Zurn
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`Pex Plumbing Prods. Liab. Litig., No. 08-MDL-1958, 2012 WL 5055810, *6 (D. Minn.
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`Oct. 18, 2012).
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`It is respectfully submitted that the proposed Settlement Agreement between DPPs
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`and JBS satisfies the preliminary approval standard and should be approved by the Court.
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`A.
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`The Proposed Settlement Is the Result of Arm’s-Length Negotiations
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`“The court is entitled to rely on the judgment of experienced counsel in its
`
`evaluation of the merits of a class action settlement.” In re Employee Benefit Plans Sec.
`
`Litig., No. 3-92-708, 1993 WL330595, *5 (D. Minn. June 2, 1993) (citation omitted); see
`
`also Welsch v. Gardenbring, 667 F. Supp. 1284, 1295 (D. Minn. 1987) (affording “great
`
`weight” to opinions of experienced counsel). Courts attach “[a]n initial presumption of
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`fairness . . . to a class settlement reached in arm’s-length negotiations between experienced
`
`and capable counsel after meaningful discovery.” Grier v. Chase Manhattan Auto Fin. Co.,
`
`No. A.99-180, 2000 WL175126, at *5 (E.D. Pa. Feb. 16, 2000); see also Grunin, 513 F.2d
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`at 123; White v. Nat’l Football League, 836 F. Supp. 1458, 1476-77 (D. Minn. 1993).
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`Indeed, courts consistently find that the terms of a settlement are appropriate where
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`the parties, represented by experienced counsel, have engaged in extensive negotiation at
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`an appropriate stage in the litigation and can properly evaluate the strengths and
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`weaknesses of the case and the propriety of the settlement. See, e.g., In re Emp. Benefit
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`Plans Sec. Litig., 1993 WL 330595, at *5 (noting that “intensive and contentious
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`negotiations likely result in meritorious settlements . . . .”); In re Zurn Pex Plumbing Prods.
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`Liab. Litig., No. 08-MDL-1958, 2013 WL 716088, at *6 (D. Minn. Feb. 27, 2013)
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`(observing that “[s]ettlement agreements are presumptively valid, particularly where a
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`‘settlement has been negotiated at arm’s-length, discovery is sufficient, [and] the settlement
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`proponents are experienced in similar matters . . . .’”) (citation omitted). When, as here,
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`experienced counsel represent the parties, and rigorous negotiations were conducted at
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`arms’ length (in this instance with the assistance of a nationally recognized mediator), the
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`judgment of the litigants and their counsel concerning the adequacy of the Settlement
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`should be considered. See Petrovic v. Amoco Oil Co., 200 F.3d 1140, 1149 (8th Cir. 1999);
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`DeBoer v. Mellon Mortg. Co., 64 F.3d 1171, 1178 (8th Cir. 1995).
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`Here, the parties have had ample opportunity to assess the merits of DPPs’ claims
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`and JBS’s defenses, through investigation, research, settlement discussions and contested
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`motion practice; and to balance the value of Settlement Class members’ claims against the
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`substantial risks and expense of continuing litigation. The proposed settlement comes after
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`extensive arm’s-length negotiations between the parties. See Bruckner Decl. ¶¶ 6-9. These
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`discussions commenced prior to the Court’s ruling on Defendants’ initial motion to
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`dismiss, at which time counsel for JBS and DPPs met in person to discuss a possible
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`resolution. Id. ¶ 6. The parties were unable to reach an agreement at that time and continued
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`litigating the case, including briefing and arguments relating to Defendants’ motions to
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`dismiss. Id. The Court granted JBS’s initial motion to dismiss (ECF No. 360), which
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`resulted in DPPs filing the TCAC, and a second round of motions to dismiss by Defendants.
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`Before the Court denied JBS’s second motion to dismiss on October 16, 2020 (ECF Nos.
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`519, 520), JBS and DPPs recommenced discussions and negotiated in good faith over a
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`two-week period, but did not reach an agreement. Id. ¶ 7. After the Court denied JBS’s
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`second motion to dismiss, the parties continued their settlement negotiations, this time with
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`the assistance of an experienced and nationally-renowned mediator, Professor Eric Green
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`of Resolutions, LLC. The parties and Professor Green held a full day remote mediation on
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`October 28, 2020. Id. While the parties made substantial progress during the mediation,
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`they did not reach agreement on all material settlement terms. Id. Over the next few days
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`the parties continued negotiating, with the assistance of Professor Green, and signed a
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`binding settlement term sheet on November 3, 2020. Id. Thereafter, the parties negotiated
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`the terms of and finalized a long form Settlement Agreement, which was executed on
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`November 17, 2020. Id.
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`In sum, the Settlement Agreement: (1) is the result of extensive good faith
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`negotiations between knowledgeable and skilled counsel; (2) was entered into after
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`extensive factual investigation and legal analysis; and (3) in the opinion of experienced
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`class counsel, is fair, reasonable, and adequate. Based on both the monetary and
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`cooperation elements of the Settlement Agreement, Interim Co-Lead Class Counsel
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`believes the Settlement Agreement is in the best interests of the Settlement Class members
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`and should be approved by the Court. Id. ¶¶ 6-10; see also Declaration of Bobby Pouya
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`(“Pouya Decl.”) ¶¶ 3-7.
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`B.
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`The Settlement Provides Significant Relief to the Settlement Class and
`Should be Preliminarily Approved by the Court
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`The Settlement Agreement with JBS provides substantial relief to the Settlement
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`Class in terms of monetary relief and cooperation. Under the terms of the Settlement
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`Agreement, within 14 days of the Court’s preliminary approval of the Settlement, JBS will
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`pay $24,500,000 into the Settlement Fund, which shall be deposited into an interest-bearing
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`escrow account. See Settlement Agreement ¶ 9. The Settlement Fund will be used to
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`compensate the Settlement Class for the damages suffered, and expenses incurred,
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`including attorneys’ fees, litigation expenses, and the costs of notice. Id. ¶¶ 9, 12. At this
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`time, Plaintiffs and their counsel are not seeking any attorneys’ fees, non-administration
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`expenses, or incentive awards from the Settlement proceeds. However, they may do so in
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`the future, and will file a motion with the Court at an appropriate time.4
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`In addition to the payment of money, the Settlement requires JBS to provide
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`specified cooperation in the DPPs’ continued prosecution of the action against the
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`remaining Defendants. The terms of this cooperation are set forth in a confidential letter
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`agreement, which will be provided to the Court for in camera review upon request. See
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`Settlement Agreement ¶ 10. The cooperation aspect of the settlement is significant, because
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`pursuant to the Sherman Act, the remaining Defendants are jointly and severally liable for
`
`any damages resulting from JBS’s Pork sales to DPPs during the Class Period. See Texas
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`Indus., Inc. v. Radcliff Materials, Inc., 451 U.S. 630, 646 (1981); Paper Sys. Inc. v. Nippon
`
`Paper Indus. Co., 281 F.3d 629, 633 (7th Cir. 2002). Thus, this cooperation will assist
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`Plaintiffs in recovering the maximum amount of their damages against the remaining
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`Defendants in the case.
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`In consideration for these settlement benefits, DPPs and the proposed Settlement
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`Class agree to release certain Released Claims (as defined in the Settlement Agreement)
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`against JBS Released Parties (as defined in the Settlement Agreement). See Settlement
`
`Agreement ¶ 9, 14. The release does not extend to any other Defendants or co-conspirators,
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`or unrelated claims for breach of contract, any negligence, personal injury, bailment, failure
`
`
`4 As set forth in the proposed Settlement Class notice documents and the Settlement
`Agreement at ¶ 6.b, DPPs may withdraw up to $500,000 of the Settlement Fund, subject
`to the Court’s approval, to pay for actual costs of notice and for Preliminary Approval and
`Final Approval of this Settlement Agreement.
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`to deliver lost goods, damaged or delayed goods, product defect, or securities claims. Id.
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`At 14.5
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`In sum, this Settlement with JBS provides substantial monetary and non-monetary
`
`relief to the Settlement Class and falls well within the range of possible approval. For these
`
`reasons, the Court should grant preliminary approval to the Settlement Agreement and
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`authorize notice to the Settlement Class. See White v. Nat’l Football League, 822 F. Supp.
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`1389, 1399 (D. Minn. 1993); 2 Newberg on Class Actions § 11.24.
`
`IV. THE COURT SHOULD CERTIFY THE PROPOSED SETTLEMENT
`CLASS
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`At the preliminary approval stage, the Court must also determine whether to certify
`
`the proposed Settlement Class for settlement purposes under Rule 23. See, e.g., Amchem
`
`Prods., Inc. v. Windsor, 521 U.S. 591, 620 (1997). Certification of a settlement class must
`
`satisfy each requirement set forth in Rule 23(a), as well as at least one of the separate
`
`provisions of Rule 23(b). Id. at 613-14; see also In re Monosodium Glutamate Antitrust
`
`Litig., 205 F.R.D. 229, 231 (D. Minn. 2001) (citing Gen. Tel. Co. of Sw. v. Falcon, 457
`
`U.S. 147, 161 (1982)).
`
`Here, DPPs seek certification of a Settlement Class consisting of:
`
`All persons who purchased Pork directly from any of the
`Defendants or any co(cid:173)conspirator, or
`their respective
`subsidiaries or affiliates for use or delivery in the United States
`from at least as early as January 1, 2009 until the date of the
`
`
`5 The Settlement also provides JBS with the ability to terminate the Settlement
`Agreement if potential members of the Settlement Class representing more than a specified
`portion of relevant transactions—as set forth in a confidential letter agreement being filed
`under seal with Court, see Bruckner Decl. Ex. C opt out of the Settlement Class. Settlement
`Agreement ¶ 19.
`
`944653.7
`
`10
`
`

`

`CASE 0:18-cv-01776-JRT-HB Doc. 542 Filed 12/01/20 Page 16 of 28
`
`order granting Preliminary Approval of the Settlement
`Agreement. 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.
`
`Settlement Agreement ¶ 5. As detailed herein, this proposed Settlement Class meets the
`
`requirements of Rule 23(a), as well as the requirements of Rule 23(b)(3).
`
`A.
`
`The Proposed Settlement Class Satisfies the Requirements of Rule 23(a)
`
`1.
`
`The Class is Sufficiently Numerous
`
`Rule 23(a)(1) requires that the class be so numerous as to make joinder of its
`
`members “impracticable.” No rigid rule of thumb has been developed in the Eighth Circuit
`
`as to how many potential class members is sufficient to satisfy the numerosity requirement.
`
`Gries v. Standard Ready Mix Concrete, L.L.C., 252 F.R.D 479, 484 (N.D. Iowa 2008).
`
`However, some courts apply a rule of thumb that a class of over 40 persons is sufficiently
`
`numerous. Richter v. Bowen, 669 F. Supp. 275, 281 n.4 (N.D. Iowa 1987) (citing 3B J.
`
`Moore, Moore’s Fed. Procedure 23.05[1]). The proposed Settlement Class consists of
`
`entities that purchased Pork directly from the Defendants during the Class Period. Because
`
`Pork products are widely distributed and consumed throughout the United States, DPPs
`
`estimate that there are thousands of Settlement Class members. Bruckner Decl. ¶ 5.
`
`944653.7
`
`11
`
`

`

`CASE 0:18-cv-01776-JRT-HB Doc. 542 Filed 12/01/20 Page 17 of 28
`
`2.
`
`Questions of Law and Fact Are Common to the Settlement Class
`
`Rule 23(a)(2) requires that there be “questions of law or fact common to the class.”
`
`Plaintiffs must show that resolution of an issue of fact or law “is central to the validity of
`
`each” class member’s claim and “[e]ven a single [common] question will” satisfy the
`
`commonality requirement. Dukes, 564 U.S. at 359. A central allegation in this case is that
`
`Defendants illegally conspired to fix, raise, maintain and stabilize Pork prices. Proof and
`
`defense of this alleged conspiracy will be common to all Class members. See, e.g., Blades
`
`v. Monsanto Co., 430 F.3d 562, 566 (8th Cir. 2005) (“For a class to be certified, plaintiffs
`
`need to demonstrate that common issues prevail as to the existence of a conspiracy and the
`
`fact of injury.”). In addition to this overarching common question, this case is replete with
`
`other questions of law and fact common to the Settlement Class, including but not limited
`
`to the following: (1) whether the conduct of Defendants and their co-conspirators, as
`
`alleged in this Complaint, caused injury to the business or property of the Plaintiffs and the
`
`other members of the Class; (2) the effect of Defendants’ alleged conspiracy on the prices
`
`of Pork sold in the United States during the Class Period; and (3) the appropriate measure
`
`of any damages. Accordingly, the Settlement Class satisfies Rule 23(a)(2).
`
`3.
`
`Plaintiffs’ Claims are Typical of Those of the Settlement Class
`
`Rule 23(a)(3) requires that the class representatives’ claims be typical of class
`
`members’ claims. Typicality is closely related to commonality and “a finding of one
`
`generally compels a finding of the other.” Huyer v. Wells Fargo & Co., 295 F.R.D. 332,
`
`349 (S.D. Iowa 2016). Typicality “is fairly easily met so long as other class members have
`
`claims similar to the named plaintiff.” DeBoer, 64 F.3d at 1174. “Factual variations in the
`
`944653.7
`
`12
`
`

`

`CASE 0:18-cv-01776-JRT-HB Doc. 542 Filed 12/01/20 Page 18 of 28
`
`individual claims will not normally preclude class certification if the claim arises from the
`
`same event or course of conduct as the class claims and gives rise to the same legal or
`
`remedial theory.” Alpern v. UtiliCorp United, Inc., 84 F.3d 1525, 1540 (8th Cir. 1996).
`
`DPPs here allege that Defendants illegally conspired to fix, raise, maintain and
`
`stabilize Pork prices. As alleged in the Complaint, the named Plaintiffs each alleged that
`
`they purchased Pork

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