throbber
CASE 0:18-cv-01776-JRT-HB Doc. 742 Filed 03/26/21 Page 1 of 22
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`UNITED STATES DISTRICT COURT
`DISTRICT OF MINNESOTA
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`
`Civil No. 18-1776 (JRT/HB)
`
`MEMORANDUM OF POINTS AND
`AUTHORITIES IN SUPPORT OF
`PRELIMINARY APPROVAL OF
`THE CLASS ACTION
`SETTLEMENT BETWEEN
`CONSUMER INDIRECT
`PURCHASER PLAINTIFFS AND
`JBS DEFENDANTS
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`
`
`
`
`
`
`
`
`
`IN RE PORK ANTITRUST
`LITIGATION
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`
`
`
`
`This Document Relates to:
`
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`All Consumer Indirect Purchaser Actions
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`

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`
`I. 
`
`II. 
`
`III. 
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`IV. 
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`CASE 0:18-cv-01776-JRT-HB Doc. 742 Filed 03/26/21 Page 2 of 22
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`TABLE OF CONTENTS
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`INTRODUCTION ................................................................................................... 1 
`
`SUMMARY OF LITIGATION .............................................................................. 1 
`
`SUMMARY OF SETTLEMENT NEGOTIATIONS AND TERMS ..................... 4 
`
`THE SETTLEMENTS FALL WITHIN THE RANGE OF
`POSSIBLE APPROVAL ........................................................................................ 6 
`
`A. 
`
`B. 
`
`C. 
`
`The settlements were reached in arm’s length negotiations
`between experienced and capable counsel. .................................................. 7 
`
`Consumer IPPs have had adequate opportunity to assess the
`merits of their claims, and JBS’s defenses. .................................................. 8 
`
`The settlement provides significant relief to the settlement
`class. ............................................................................................................. 9 
`
`V. 
`
`THE COURT SHOULD CERTIFY THE PROPOSED
`SETTLEMENT CLASS ........................................................................................ 10 
`
`A. 
`
`The Proposed Settlement Class Satisfies Rule 23(a) ................................. 11 
`
`1. 
`
`2. 
`
`3. 
`
`4. 
`
`Numerosity ...................................................................................... 11 
`
`Commonality ................................................................................... 11 
`
`Typicality ........................................................................................ 12 
`
`Adequacy ......................................................................................... 13 
`
`B. 
`
`The Proposed Settlement Class Satisfies Rule 23(b)(3) ............................ 14 
`
`VI.  CONSUMER IPPS PROPOSE TO SEND NOTICE AFTER THEY
`HAVE COLLECTED DIRECT CONTACT INFORMATION FOR
`CLASS MEMBERS .............................................................................................. 15 
`
`VII.  CONCLUSION ..................................................................................................... 16 
`
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`CASE 0:18-cv-01776-JRT-HB Doc. 742 Filed 03/26/21 Page 3 of 22
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`
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`TABLE OF AUTHORITIES
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`CASES
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` Page(s)
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`Alpern v. UtiliCorp United, Inc.,
`84 F.3d 1525 (8th Cir. 1996) ....................................................................................... 12
`
`Amchem Prods., Inc. v. Windsor,
`521 U.S. 591 (1997) ..................................................................................................... 10
`
`Custom Hair Designs by Sandy v. Cent. Payment Co., LLC,
`984 F.3d 595 (8th Cir. 2020) ....................................................................................... 14
`
`DeBoer v. Mellon Mortg. Co.,
`64 F.3d 1171 (8th Cir. 1995) ................................................................................... 8, 12
`
`In re Emp. Benefit Plans Sec. Litig.,
`1993 WL 330595 (D. Minn. June 2, 1993) .................................................................... 7
`
`Grier v. Chase Manhattan Auto Fin. Co.,
`2000 WL175126 (E.D. Pa. Feb. 16, 2000) .................................................................... 7
`
`Huyer v. Wells Fargo & Co.,
`295 F.R.D. 332 (S.D. Iowa 2016) ................................................................................ 12
`
`In re Monosodium Glutamate Antitrust Litig.,
`205 F.R.D. 229 (D. Minn. 2001) .................................................................................. 10
`
`Paxton v. Union Nat. Bank,
`688 F.2d 552 (8th Cir. 1982) ....................................................................................... 13
`
`Petrovic v. Amoco Oil Co.,
`200 F.3d 1140 (8th Cir. 1999) ................................................................................. 8, 15
`
`Richter v. Bowen,
`669 F. Supp. 275 (N.D. Iowa 1987) ............................................................................. 11
`
`Wal-Mart Stores, Inc. v. Dukes,
`564 U.S. 338 (2011) ..................................................................................................... 11
`
`White v. Nat’l Football League,
`822 F.Supp. 1389 (D. Minn.1993) ............................................................................. 6, 7
`
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`White v. Nat’l Football League,
`836 F. Supp. 1458 (D. Minn. 1993) ............................................................................... 7
`
`In re Zurn Pex Plumbing Prods. Liab. Litig.,
`2013 WL 716088 (D. Minn. Feb. 27, 2013) .................................................................. 7
`
`FEDERAL STATUTES
`
`Sherman Act § 1 ............................................................................................................ 2, 15
`
`FEDERAL RULES
`
`Federal Rule of Civil Procedure 23 ............................................................................ passim
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`CASE 0:18-cv-01776-JRT-HB Doc. 742 Filed 03/26/21 Page 5 of 22
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`I.
`Consumer Indirect Purchaser Plaintiffs (“consumer IPPs”) respectfully move for
`
`INTRODUCTION
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`preliminary approval of settlements with Defendants JBS USA Food Company, JBS USA
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`Food Company Holdings, and Swift Pork Company (collectively, “Settling Defendants”
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`or “JBS”). This first settlement for the consumer IPP class – negotiated at arm’s length –
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`provides $20 million in total relief to the consumer IPP class. This settlement is the result
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`of arm’s length negotiations, conducted in front of an experienced mediator, which
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`provides substantial monetary and non-monetary relief to the consumer IPP class.
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`Settling Defendants’ agreement to provide cooperation will also strengthen plaintiffs’
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`case against the remaining Defendants. Consumer IPPs request that this Court grant
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`preliminary approval of the settlement, certify the proposed settlement class for
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`settlement purposes, and allow the consumer IPPs time days to acquire contact
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`information for class members from grocery stores. Subject to the Court’s preliminary
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`approval of the settlement, the consumer IPPs will file a motion to direct notice within 60
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`days, proposing a notice plan to this court as well as the proposed notices themselves.
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`II.
`Consumer IPPs – the first to file a complaint against the Pork industry – have been
`
`SUMMARY OF LITIGATION
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`litigating this case diligently for almost three years.1 The consumer IPP complaint alleges
`
`
`1 The defendants in this case are: Agri Stats, Inc. (“Agri Stats”); Clemens Food
`Group, LLC, The Clemens Family Corporation, and Hatfield Quality Meats (together and
`separately, “Clemens”); Hormel Foods Corporation (“Hormel”); Indiana Packers
`Corporation (“Indiana Packers”); JBS USA Food Company (“JBS”); Seaboard Foods
`LLC (“Seaboard”); Smithfield Foods, Inc. (“Smithfield”); Triumph Foods, LLC
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`CASE 0:18-cv-01776-JRT-HB Doc. 742 Filed 03/26/21 Page 6 of 22
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`that defendants coordinated the supply and price of pork from at least 2009 to the present
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`through the exchange of detailed, competitively sensitive information through Agri Stats.
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`MTD Order at 7.2 Agri Stats would collect the sensitive information from the pork
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`defendants and disseminate it back to them in detailed weekly and monthly reports,
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`standardizing the information across the defendants into an “apples to apples”
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`comparison. Through these reports, defendants were able to decipher which data
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`belonged to which defendant, allowing them to monitor production and price levels in the
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`industry. Id. In addition, Plaintiffs allege that defendants carried out the conspiracy
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`through public statements, aimed at one another, regarding the need to cut production.
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`Defendants then took individual action to cut supply or limit supply increases that would
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`otherwise not have occurred. Id.
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`On October 15, 2018, the Court appointed Hagens Berman Sobol Shapiro LLP
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`(“Hagens Berman”) and Gustafson Gluek PLLC (“Gustafson Gluek”) as lead counsel for
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`the proposed consumer IPP class. ECF No. 151. On August 17, 2018, the consumer
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`indirect purchasers filed a Consolidated Amended Class Action Complaint alleging that
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`the defendants conspired to suppress pork output and raise pork prices, in violation of the
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`Sherman Act and state antitrust and consumer protection laws. ECF No. 74.3 The Court
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`(“Triumph”); and Tyson Foods, Inc., Tyson Fresh Meats, Inc. and Tyson Prepared Foods,
`Inc. (together and separately, “Tyson”).
`2 “MTD Order” refers to the Memorandum and Order, ECF No. 519 (filed Oct. 16,
`2020).
`3 EUCPs’ initial Consolidated Amended Class Action Complaint alleged that fifteen
`pork processors maintained a per se unlawful conspiracy to suppress pork output and
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`CASE 0:18-cv-01776-JRT-HB Doc. 742 Filed 03/26/21 Page 7 of 22
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`granted the defendants’ first set of motions to dismiss, and on November 6, 2019, the
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`consumer IPPs filed a Second Amended Consolidated Class Action Complaint (SAC).
`
`ECF Nos. 393 (redacted) and 392 (under seal). On October 16, 2020, the Court denied
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`the defendants’ motions to dismiss, except as to Indiana Packers. ECF No. 519. The
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`consumer IPPs bring claims for damages under the antitrust, consumer protection and
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`unjust enrichment laws of 26 states and the District of Columbia. SAC, ¶ 246.
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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
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`or the assistance of a leniency applicant under the DOJ’s Corporate Leniency Program.
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`Rather, the conspiracy was identified by consumer IPPs through the use of investigators
`
`and economists, leading to the first complaint filed – the consumer IPP complaint.
`
`Since the filing of the complaint, consumer IPPs have engaged in rigorous
`
`discovery. On January 28, 2019, Magistrate Judge Bowbeer granted the plaintiffs’ motion
`
`to compel documents produced by Agri Stats to the Department of Justice. ECF No. 264.
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`These documents were heavily incorporated into the consumer IPPs’ second amended
`
`complaint. Moreover, working with counsel representing the other classes, consumer
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`IPPs have collected over 85,000 documents to date relevant to the defendants and the
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`pork market. Scarlett Decl., ¶ 3.4
`
`
`raise prices, as well as an additional claim for an agreement to exchange information
`under the rule of reason standard. ECF No. 74.
`4 “Scarlett Decl.” refers to the Declaration of Shana E. Scarlett in Support of the
`Motion for Preliminary Approval of Settlement Between Consumer Indirect Purchaser
`Plaintiffs and JBS Defendants, filed concurrently herewith.
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`III. SUMMARY OF SETTLEMENT NEGOTIATIONS AND TERMS
`The settlement between JBS and the consumer IPPs is the product of confidential,
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`protracted, intense arms-length negotiations and includes both monetary relief for the
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`class and cooperation in the consumer IPPs’ litigation against the non-settling defendants.
`
`JBS and the consumer IPPs first discussed settlement while the second set of
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`motions to dismiss were pending, in September 2020. Scarlett Decl., ¶ 4. While the initial
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`discussions were unsuccessful, after the motions to dismiss were denied, the parties
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`reengaged in early 2021. A mediation was held before Professor Eric Green, a noted
`
`mediator with Resolutions, LLC. An agreement upon terms was reached on March 9,
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`2021 and the settlement agreement was signed by both parties on March 12, 2021.
`
`Scarlett Decl., ¶ 5; Ex. A.
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`The settlement provides that JBS will pay $20 million into a settlement fund that
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`will be used to compensate the consumer IPP class and cover litigation fees and
`
`expenses, including the cost of notifying class members and administering the settlement.
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`Scarlett Decl., Ex. A. Lead Counsel believe this sum is fair and reasonable in light of
`
`JBS’s market share of class products, and the significant cooperation JBS agreed to
`
`provide:
`
`Cooperation by JBS is a material term of this Settlement
`Agreement and shall include the following categories of
`cooperation:
`
`To the extent that JBS responds to discovery, produces
`a.
`document, or provides proffers or other cooperation to other
`plaintiffs in the In re: Pork Antitrust Litigation it will serve or
`otherwise provide IPPs a copy of such materials reasonably
`soon after such production to any other plaintiff.
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`CASE 0:18-cv-01776-JRT-HB Doc. 742 Filed 03/26/21 Page 9 of 22
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`JBS agrees to use reasonable effort to respond to a
`b.
`reasonable number of IPPs questions [] and otherwise assist
`IPPs to understand structured data produced by JBS in this
`matter (if any).
`
`JBS agrees to use reasonable efforts to authenticate
`c.
`documents and/or things produced by JBS in the Action where
`the facts indicate that the documents and/or things at issue are
`authentic, whether by declarations, affidavits, depositions,
`hearings and/or trials as may be necessary for the Action.
`
`Id., Ex. A at 11.
`
`In exchange, consumer IPPs agree to release:
`
`the JBS parties from any and all claims, demands, actions,
`suits, causes of action, 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 JBS or any of the Defendants
`or their co-conspirators Defendants or their co-conspirators,
`and purchased indirectly by the Releasing Parties (the
`“Released Claims”).
`
`Scarlett Decl., Ex. A at 13-14. The released claims “do not include (i) claims asserted
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`against any Defendant or co-conspirator other than the JBS Released Parties; (ii) any
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`claims wholly unrelated to the allegations in the Actions that are based on breach of
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`contract, any negligence, personal injury, bailment, failure to deliver lost goods, damaged
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`or delayed goods, product defect or securities claim; or (iii) damages claims under the
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`state or local laws of any jurisdiction other than an Indirect Purchaser State.” Id.5 For the
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`purposes of this settlement, Pork means:
`
`“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 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).
`
`Scarlett Decl., Ex. A at 5.
`
`IV. THE SETTLEMENT FALLS WITHIN THE RANGE
`OF POSSIBLE APPROVAL
`
`“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.”6 However, Courts must
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`review class action settlements to ensure that they are “fair, reasonable, and adequate.”
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`Fed. R. Civ. P. 23(e)(2).
`
`At this preliminary approval stage, the Court determines whether the settlement is
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`within the range of possible approval and whether class members should be notified of
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`5 The settlement agreement with JBS may be terminated in the unlikely event that
`more than 500,000 potential class members “timely and validly exclude themselves from
`the Settlement Class.” Id. at 15.
`6 White v. Nat’l Football League, 822 F.Supp. 1389, 1416 (D. Minn.1993).
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`CASE 0:18-cv-01776-JRT-HB Doc. 742 Filed 03/26/21 Page 11 of 22
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`the terms of the proposed settlement.7 Generally, before directing notice to the class
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`members, a Court makes a preliminary evaluation of the proposed class action settlement
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`pursuant to Rule 23(e).8 In other words, the Court must consider whether it “will likely be
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`able to” approve the settlement as fair, reasonable, and adequate.9
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`As set forth below, consumer IPPs’ agreement with JBS is fair, reasonable, and
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`adequate. Courts attach “[a]n initial presumption of fairness . . . to a class settlement
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`reached in arm’s-length negotiations between experienced and capable counsel after
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`meaningful discovery.”10
`
`A.
`
`The settlements were reached in arm’s length negotiations between
`experienced and capable counsel.
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`Courts consistently find that the terms of a settlement are appropriate where the
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`parties, represented by experienced counsel, have engaged in extensive negotiation at an
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`appropriate stage in the litigation and can properly evaluate the strengths and weaknesses
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`of the case and the propriety of the settlement.11
`
`
`7 White, 822 F. Supp. At 1399; 2 Newberg on Class Actions, § 11.24 (3d ed. 1992)
`(“The first step in district court review of a class action settlement is a preliminary, pre-
`notification hearing to determine whether the proposed settlement is ‘within the range of
`possible approval.’”).
`8 See Manual For Complex Litigation, (Fourth) § 21.632 (2004).
`9 Fed. R. Civ. P. 23(e)(1)(B)(i); see Fed. R. Civ. P. 23(e)(2).
`10 Grier v. Chase Manhattan Auto Fin. Co., No. A.99-180, 2000 WL175126, at *5
`(E.D. Pa. Feb. 16, 2000); see also Grunin v. Int’l House of Pancakes, 513 F.2d 114, 123
`(8th Cir. 1975); White v. Nat’l Football League, 836 F. Supp. 1458, 1476-77 (D. Minn.
`1993).
`11 See, e.g., In re Emp. Benefit Plans Sec. Litig., Civ. No. 3-92-708, 1993 WL 330595,
`at *5 (D. Minn. June 2, 1993) (noting that “intensive and contentious negotiations likely
`result in meritorious settlements . . . .”); In re Zurn Pex Plumbing Prods. Liab. Litig., No.
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`CASE 0:18-cv-01776-JRT-HB Doc. 742 Filed 03/26/21 Page 12 of 22
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`Both sets of counsel – both those representing the consumer IPPs, and those
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`representing JBS – are experienced counsel in antitrust matters. The negotiations between
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`counsel were conducted before a mediator, well respected in the industry (Professor Eric
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`Green), who ensured that the negotiations were conducted at arm’s length. Given this, 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.12
`
`B.
`
`Consumer IPPs have had adequate opportunity to assess the merits of their
`claims, and JBS’s defenses.
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`The consumer IPPs especially, have had adequate opportunity to assess the merits
`
`of their claims. This group of plaintiffs first began their case investigation in January
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`2018 – six months before the first complaint was filed. Hagens Berman retained case
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`investigators to interview witnesses, and economists to examine publicly available data to
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`assist in building a complaint against the Pork industry. Attorneys reviewed public
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`statements by the defendants, press releases, transcripts of investor calls, and filings with
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`the Security and Exchange Commission to determine whether public signaling across the
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`defendants had occurred. As counsel for the consumer IPP class in the In re Broilers
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`Chicken Antitrust Litigation, Hagens Berman was aware of the role that Agri Stats played
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`in that industry.
`
`
`08-MDL-1958, 2013 WL 716088, at *6 (D. Minn. Feb. 27, 2013) (observing that
`“[s]ettlement agreements are presumptively valid, particularly where a ‘settlement has
`been negotiated at arm’s-length, discovery is sufficient, [and] the settlement proponents
`are experienced in similar matters . . . .’”) (citation omitted).
`12 Petrovic v. Amoco Oil Co., 200 F.3d 1140, 1149 (8th Cir. 1999); DeBoer v. Mellon
`Mortg. Co., 64 F.3d 1171, 1178 (8th Cir. 1995).
`
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`CASE 0:18-cv-01776-JRT-HB Doc. 742 Filed 03/26/21 Page 13 of 22
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`While the motions to dismiss were pending, plaintiffs brought a motion to compel
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`the production of documents produced by Agri Stats to the DOJ. Magistrate Bowbeer
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`granted this motion, resulting in the production of approximately 65,000 documents by
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`Agri Stats. These documents were eventually incorporated into the second amended
`
`complaint – the complaint upheld by this Court in its second motion to dismiss order.
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`Scarlett Decl., ¶ 6.
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`Access to these documents, plus the additional 20,000 documents produced by
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`other defendants and industry participants, have given the consumer IPPs sufficient
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`information to understand the strength and weaknesses of their claims and JBS’s
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`defenses. The settlement should therefore be accorded a presumption of fairness.
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`C.
`
`The settlement provides significant relief to the settlement class.
`
`The settlement provides “adequate” relief for the class, in accordance with Fed. R.
`
`Civ. P. 23(e)(2)(C). Although the defendants have not yet produced their data to
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`plaintiffs, based on publicly available information, consumer IPPs estimate that the JBS
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`defendants have approximately 20 percent of the market share for consumer IPP class
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`products. See Scarlett Decl., ¶ 7. The $20 million settlement represents $1 million for
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`each point of market share – putting the value of this case well over $100 million at this
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`stage in the litigation. This is an outstanding result. In addition to the financial
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`compensation, the cooperation that consumer IPPs have secured from the settlement will
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`bolster consumer IPPs’ claims against the seven non-settling defendants.
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`The proposed settlement also “treats class members equitably relative to each
`
`other.” Fed. R. Civ. P. 23(e)(2)(D). Funds will be awarded based on the purchase of
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`qualifying class products purchased. Although consumer IPPs are not requesting
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`distribution of funds at this time, they will propose that class members be allowed to
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`submit claims through a simplified online claims process. The funds will then be
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`distributed through an electronic method, pro rata, to each class member based on
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`qualifying purchases. For efficiency’s sake, however, consumer IPPs propose that this
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`plan of distribution and the distribution itself wait until later in the litigation when more
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`settlement monies are available.
`
`V.
`
`THE COURT SHOULD CERTIFY THE PROPOSED
`SETTLEMENT CLASS
`
`At the preliminary approval stage, the Court must also determine whether to
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`certify the proposed Settlement Class for settlement purposes under Rule 23.13
`
`Certification of a settlement class must satisfy each requirement set forth in Rule 23(a),
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`as well as at least one of the separate provisions of Rule 23(b).14
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`The settlement proposes the same Settlement Class, which is consistent with the
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`one alleged in the Consumer Indirect Purchaser Plaintiffs’ Second Amended
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`Consolidated Class Action Complaint, November 6, 2019, ECF Nos. 392 (sealed), 393
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`(redacted), defined as:
`
`[A]ll persons and entities who purchased pork indirectly from
`any of the Defendants or any co-conspirator, or their respective
`subsidiaries or affiliates, for personal use in the United States
`from at least as early as January 1, 2009 until the date of the
`
`13 See, e.g., Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 620 (1997).
`14 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)).
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`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 members of his/her
`immediate family and judicial staff, and any juror assigned to
`this action.
`
`As explained below, this Settlement Class satisfies all the requirements of Rule 23.
`
`A.
`
`The Proposed Settlement Class Satisfies Rule 23(a)
`1.
`Numerosity
`The numerosity requirement of Rule 23(a)(1) is satisfied where joiner of all
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`putative class members is “impracticable.” Generally, a class of forty or more plaintiffs is
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`sufficient to satisfy the numerosity requirement.15 Certainly here, where the proposed
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`class spans over a decade, and the product (pork) is nearly ubiquitous in American
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`households, the low threshold of numerosity is satisfied.
`
`Commonality
`
`2.
`There are also “questions of law or fact common to the [consumer IPP] class.”
`
`Fed. R. Civ. P. 23(a)(2). Commonality exists where plaintiffs’ claims depend on a
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`“common contention . . . of such a nature that it is capable of classwide resolution—
`
`which means that determination of its truth or falsity will resolve an issue that is central
`
`to the validity of each one of the claims in one stroke.” Wal-Mart Stores, Inc. v. Dukes,
`
`
`15 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]).
`
`010737-11 1449936V1
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`CASE 0:18-cv-01776-JRT-HB Doc. 742 Filed 03/26/21 Page 16 of 22
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`
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`564 U.S. 338, 350 (2011). Consumer IPPs are relying on several common contentions,
`
`including: (1) defendants conspired to decrease pork output and increase pork prices; and
`
`(2) defendants’ conduct caused overcharges for pork consumers.
`
`Typicality
`
`3.
`Under Rule 23(a), typicality is satisfied if “the claims or defenses of the
`
`representative parties are typical of the claims or defenses of the class.” Fed. R. Civ. P.
`
`23(a). Typicality is closely related to commonality and “a finding of one generally
`
`compels a finding of the other.”16 Typicality “is fairly easily met so long as other class
`
`members have claims similar to the named plaintiff.”17 “Factual variations in the
`
`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.”18
`
`Here, typicality is satisfied because consumer IPPs’ claims are based on the same
`
`antitrust conspiracy. Each class member has suffered the same harm through the purchase
`
`of pork in grocery stores that was subject to an overcharge. No individual class member
`
`could have known of the conspiracy – the Agri Stats reports themselves are highly
`
`secretive, provided only to industry participants and never released to the public. Each
`
`individual class representative has the same interests in pursuing these claims on behalf
`
`of the absent class. Their claims are typical.
`
`
`16 Huyer v. Wells Fargo & Co., 295 F.R.D. 332, 349 (S.D. Iowa 2016).
`17 DeBoer, 64 F.3d at 1174.
`18 Alpern v. UtiliCorp United, Inc., 84 F.3d 1525, 1540 (8th Cir. 1996).
`
`010737-11 1449936V1
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`CASE 0:18-cv-01776-JRT-HB Doc. 742 Filed 03/26/21 Page 17 of 22
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`
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`Adequacy
`
`4.
`The proposed plaintiffs are adequate representatives of the proposed class. Fed. R.
`
`Civ. P. 23(a)(4). The focus here is whether “(1) the class representatives have common
`
`interests with the members of the class, and (2) whether the class representatives will
`
`vigorously prosecute the interests of the class through qualified counsel.”19
`
`Here, the named plaintiffs have no material conflict with other class members.
`
`Each purchased pork from grocery stores, unaware of the existence of the defendants’
`
`alleged agreement to fix, raise, maintain, and stabilize pork prices, and suppress pork
`
`output. No one individual class member could avoid the claimed overcharges. Each
`
`named plaintiff is aligned with the class in establishing the defendants’ liability and
`
`maximizing class-wide damages.
`
`Interim co-lead class counsel is also adequate. As the Court has already
`
`recognized in appointing Hagens Berman and Gustafson Gluek, each of these firms and
`
`their attorneys are qualified and experienced in representing antitrust plaintiffs. Interim
`
`co-lead counsel have represented victims of antitrust conspiracies across the country, and
`
`will continue to vigorously represent the class here.
`
`The named plaintiffs have fulfilled their duties as class representatives by actively
`
`participating in the litigation. Each representative has approved the terms of this
`
`settlement, and remains apprised of the status of the case. Scarlett Decl., ¶ 8.
`
`
`19 Paxton v. Union Nat. Bank, 688 F.2d 552, 562-63 (8th Cir. 1982).
`
`010737-11 1449936V1
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`CASE 0:18-cv-01776-JRT-HB Doc. 742 Filed 03/26/21 Page 18 of 22
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`
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`B.
`
`The Proposed Settlement Class Satisfies Rule 23(b)(3)
`
`Under Rule 23(b)(3), plaintiffs must show that “questions of law or fact common
`
`to class members predominate over any questions affecting only individual members, and
`
`that a class action is superior to other methods for fairly and efficiently adjudicating the
`
`controversy.” Fed. R. Civ. P. 23(b)(3). Both of these requirements are satisfied here.
`
`First, common questions of law or fact predominate over individual questions.
`
`“Slight variation in actual damages does not defeat predominance if there are common
`
`legal questions and common facts.”20 Here, a series of common questions lies at the heart
`
`of all plaintiffs’ claims, including: whether the defendants conspired to lower pork output
`
`and raise prices; whether the defendants’ information exchange was anticompetitive;
`
`whether the defendants’ conspiracy caused market-wide supracompetitive pork prices;
`
`and whether higher pork prices were passed on to pork consumers.
`
`Second, a class action is the superior mechanism for trying plaintiffs’ claims. Rule
`
`23 instructs that the matters pertinent to this inquiry include: (a) class members’ interests
`
`in individually controlling the prosecution of separate actions; (b) whether other litigation
`
`exists concerning this controversy; (c) the desirability of concentrating the litigation in
`
`this forum; and (d) any difficulties in managing a class action. Fed. R. Civ. P. 23(b)(3). In
`
`this case, the first three factors weigh heavily in favor of class certification: class
`
`members have little economic incentive to sue individually based on the amount of
`
`potential recovery involved, and no other known litigation exists regarding these claims.
`
`
`20 Custom Hair Designs by Sandy v. Cent. Payment Co., LLC, 984 F.3d 595, 6

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