CASE 0:18-cv-01776-JRT-HB Doc. 756 Filed 04/15/21 Page 1 of 19
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`UNITED STATES DISTRICT COURT
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`DISTRICT OF MINNESOTA
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`
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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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`
`
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`Case No. 18-cv-1776 (JRT/HB)
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`
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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 JBS
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`CASE 0:18-cv-01776-JRT-HB Doc. 756 Filed 04/15/21 Page 2 of 19
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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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`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 ............................................ 5
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`The Proposed Settlement Is the Result of Arm’s-Length Negotiations ............. 6
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`The Settlement Provides Significant Relief to the Settlement Class and
`Should be Preliminarily Approved by the Court .................................................... 7
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`The Court Should Certify the Proposed Settlement Class ................................................ 8
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`The Proposed Settlement Class Satisfies the Requirements of Rule 23(a) ......... 9
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`Numerosity ..................................................................................................... 9
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`Commonality .................................................................................................. 9
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`Typicality ....................................................................................................... 10
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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 ...................................................................... 10
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`The Proposed Settlement Class Satisfies the Requirements of Rule
`23(b)(3) ....................................................................................................................... 11
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`The Court Should Allow CIIPPs to Provide a Proposed Notice Plan Later ............... 13
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`B.
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`V.
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`VI. Conclusion
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` ........................................................................................................................ 14
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`CASE 0:18-cv-01776-JRT-HB Doc. 756 Filed 04/15/21 Page 3 of 19
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`Table of Authorities
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`Cases
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`Alpern v. UtiliCorp United, Inc., 84 F.3d 1525 (8th Cir. 1996) ........................................................ 10
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`Amchem Prods., Inc. v. Windsor, 521 U.S. 591 (1997) ............................................................ 8, 11, 13
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`Ark. Educ. Ass’n v. Bd. of Educ. of Portland, Ark. Sch. Dist., 446 F.2d 763 (8th Cir. 1971) ........... 9
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`Blades v. Monsanto Co., 430 F.3d 562 (8th Cir. 2005) ........................................................................ 9
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`Bryant v. Bonded Account Serv./Checking Recovery, 208 F.R.D. 251 (Minn. 2000) .......................... 11
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`Califano v. Yamasaki, 442 U.S. 682 (1979) ....................................................................................... 13
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`Custom Hair Design by Sandy v. Cent. Payment Co., LLC, 984 F.3d 595 (8th Cir. 2020) ............... 12
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`DeBoer v. Mellon Mortg. Co., 64 F.3d 1171 (8th Cir. 1995) ......................................................... 9, 10
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`Grunin v. Int’l House of Pancakes, 513 F.2d 114 (8th Cir. 1975) ....................................................... 7
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`In re Hartford Sales Practices Litig., 192 F.R.D. 592 (D. Minn. 1999) ............................................... 9
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`In re Potash Antitrust Litig., 159 F.R.D. 682 (D. Minn. 1995) ........................................................ 11
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`In re Wireless Tel. Fed. Cost Recovery Fees Litig., 396 F.3d 922 (8th Cir. 2005) ................................. 6
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`In re Zurn Pex Plumbing Prods. Liab. Litig., 2012 WL 5055810 (D. Minn. Oct. 18, 2012) .......... 14
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`In re Zurn Pex Plumbing Prods. Liab. Litig., 2013 WL 716088 (D. Minn. Feb. 27, 2013) ........ 7, 13
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`Jones v. Flowers, 547 U.S. 220 (2006) ................................................................................................. 14
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`Lockwood Motors, Inc. v. Gen. Motors Corp., 162 F.R.D. 569 (D. Minn. 1995) ................................ 9
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`Martin v. Cargill, Inc., 295 F.R.D. 380 (D. Minn. 2013) .......................................................... 5, 6, 7
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`Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306 (1950) .................................................. 13
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`Paxton v. Union Nat’l Bank, 688 F.2d 552 (8th Cir. 1982) ............................................................. 10
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`Petrovic v. Amoco Oil Co., 200 F.3d 1140 (8th Cir. 1999) ................................................................ 13
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`CASE 0:18-cv-01776-JRT-HB Doc. 756 Filed 04/15/21 Page 4 of 19
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`Sandusky Wellness Ctr., LLC v. Medtox Sci, inc., 821 F.3d 992 (8th Cir. 2016) ............................. 12
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`Smith v. ConocoPhillips Pipe Line Co., 801 F.3d 921 (8th Cir. 2015) ................................................. 8
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`Van Horn v. Trickey, 840 F.2d 604 (8th Cir. 1988) ........................................................................... 5
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`White v. Nat’l Football League, 822 F. Supp. 1389 (D. Minn. 1993) ................................................ 6
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`Statutes & Rules
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`28 U.S.C. § 1715 .................................................................................................................................. 5
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`Fed. R. Civ. P. 23 ......................................................................................................................... passim
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`Other Authorities
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`Class Actions Fairness Act of 2005, 28 U.S.C. § 1715 ................................................................... 5
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`Manual for Complex Litigation (Third) (1995) ............................................................................... 6
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` 4
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` Newberg on Class Actions (4th ed. 2002) ......................................................................... 6, 7, 12
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`CASE 0:18-cv-01776-JRT-HB Doc. 756 Filed 04/15/21 Page 5 of 19
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`I.
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`Introduction
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`The Commercial and Institutional Indirect Purchaser Plaintiffs (“CIIPPs”)1 seek the
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`Court’s preliminary approval of the settlement of their claims against the JBS defendants (JBS
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`USA Food Company; JBS USA Food Company Holdings; and Swift Pork Company). The
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`proposed settlement arose from arm’s length negotiations and provides the CIIPPs an “ice-
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`breaker” settlement in this litigation. JBS will pay $12,750,000.00 ($12.75 million) and will
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`provide non-monetary relief through material cooperation to CIIPPs. Such cooperation is
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`valuable and will assist the CIIPPs’ claims against non-settling defendants.
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`The Court should grant preliminary approval of the proposed settlement because it
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`falls well within the range of possible approval. The Court should certify the proposed
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`Settlement Class for settlement purposes. In a separate motion, CIIPPs will ask the Court to
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`approve a proposed plan for disseminating notice to the Settlement Class and to schedule a
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`Final Fairness Hearing for the proposed settlement.
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`II.
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`Background and Settlement Terms.
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`This case represents the consolidation of separately filed putative class actions alleging
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`that Defendants2 engaged in a price-fixing conspiracy to artificially constrict the supply of pork
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`1
`The CIIPP representative plaintiffs are: Sandee’s Bakery; Confetti’s; Francis T.
`Enterprises d/b/a Erbert & Gerbert’s; Joe Lopez, d/b/a Joe’s Steak and Leaf; Longhorn’s
`Steakhouse; Betty’s Eat Shop; Ziggy’s BBQ Smokehouse & Ice Cream Parlor, LLC; The Grady
`Corporation; and Mcmjoynt LLC d/b/a The Breakfast Joynt.
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`Defendants in this action include Agri Stats, Inc.; Clemens Food Group, LLC and The
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`Clemens Family Corporation; Hormel Foods Corporation and Hormel Foods, LLC; Indiana
`Packers Corporation; JBS USA Food Company; Seaboard Foods LLC and Seaboard
`Corporation; Smithfield Foods, Inc.; Triumph Foods, LLC; and Tyson Foods, Inc., Tyson
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` 2
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`1
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`CASE 0:18-cv-01776-JRT-HB Doc. 756 Filed 04/15/21 Page 6 of 19
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`products in the domestic market of the United States. The CIIPPs allege that Defendants
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`conspired to constrain the supply, and fix the price, of pork3 from at least 2009 through the
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`commencement of the present action. See CIIPP Third Consolidated and Amended Complaint
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`(Dkt. 432). The CIIPPs allege that Defendants, through their co-conspirator, Agri Stats,
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`exchanged detailed, competitively sensitive, and closely guarded non-public information about
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`price, capacity, sales volume, and demand. (Id. ¶ 2). Agri Stats provided highly sensitive
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`“benchmarking” reports to most pork integrators, thereby allowing competitors to compare
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`their profits or performance against that of other companies. (Id. ¶ 3). The effect of this anti-
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`competitive exchange of non-public information allow pork integrators to control the supply
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`and price of pork. (Id.) The named CIIPPs Plaintiffs and class members paid artificially inflated
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`prices for pork during the Class Period. (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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`Fresh Meats, Inc. and Tyson Prepared Foods, Inc.
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` 3
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`For this settlement, “Pork” means porcine or swine products processed, produced or
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`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), 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 ¶ 1m, attached as Ex. A to the Declaration of Shawn
`M. Raiter).
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`2
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`CASE 0:18-cv-01776-JRT-HB Doc. 756 Filed 04/15/21 Page 7 of 19
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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).
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`Unlike some civil-antitrust actions, these cases were brought before a formal antitrust
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`investigation by the United States Department of Justice was disclosed and without the
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`assistance of a leniency applicant under the Department of Justice’s Corporate Leniency
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`Program. Since filing their first complaint, the CIIPPs have continued their investigation and
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`development of their case. During ongoing discovery, Interim Co-Lead Class Counsel
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`negotiated the proposed settlement with JBS.
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`This first CIIPP settlement came after substantial adversarial litigation with Defendants
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`in this MDL and after years of investigation. CIIPPs’ counsel was well-informed and the
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`Settlement Agreement with JBS arose from arm’s length and good-faith negotiations. The
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`parties participated in fact-gathering sessions, informational meetings, and several mediation
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`sessions with a nationally recognized mediator.
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`Settlement Class: The Settlement Agreement defines the Settlement Class in this
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`action 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
`Settlement Class Period for their own business use in commercial food
`preparation.
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`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
`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
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`Settlement Class are any federal, state or local government 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.
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`(Ex. A, ¶ 5).
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`Settlement Amount: JBS will pay $12,750,000.00 (twelve million seven hundred and
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`fifty thousand U.S. dollars) to the CIIPP Settlement Class. From the Settlement Amount, up
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`to $500,000.00 may be used for reasonable costs of disseminating notice of the Settlement
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`Agreement, including the cost of administration. (Ex. A, ¶¶ 6b, 9). Attorneys’ fees, service
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`awards, or other costs allowed by the Court will also come from the Settlement Amount. (Id.,
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`¶ 12).
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`Cooperation: Cooperation by JBS is a material term of the Settlement Agreement. The
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`terms of the cooperation are outlined in a confidential letter agreement available upon request
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`by the Court for in camera review in connection with approval of the Settlement. (Ex. A, ¶ 10).
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`Released Claims: In consideration for the $12,750,000.00 payment and cooperation,
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`the CIIPPs agree to release the JBS Released Parties from:
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`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
`has, 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, and purchased
`indirectly by the Releasing Parties (the “Released Claims”).
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`(Ex. A, ¶ 14). The Released Claims, however, do not include:
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`CASE 0:18-cv-01776-JRT-HB Doc. 756 Filed 04/15/21 Page 9 of 19
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`(i) claims asserted against any Defendant or coconspirator other than the JBS
`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 Action 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.
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`(Id., ¶ 14).
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`Provisional Opt-Out Reduction: The terms of the Settlement Agreement provide
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`JBS the right to a reduction of the Settlement Amount if potential members of the Settlement
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`Class representing more than a specified portion of relevant transactions—as set forth in a
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`confidential letter which is provided to the Court through a filing under seal—opt out of the
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`Settlement Class. (Ex. A, ¶ 19; Ex. B).
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`The Settlement Agreement also requires JBS—within ten days of filing the Agreement
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`with the Court in connection with the motion for preliminary approval—to submit all
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`materials required to be sent to appropriate Federal and State officials pursuant to the Class
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`Actions Fairness Act of 2005, 28 U.S.C. § 1715. (Ex. A, ¶ 23).
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`III. Preliminary Approval Should be Granted.
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`The Court must review class action settlements to ensure that they are “fair, reasonable,
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`and adequate.” Fed. R. Civ. P. 23(e)(2). A district court has broad discretion in evaluating a
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`class action settlement. Van Horn v. Trickey, 840 F.2d 604, 606–07 (8th Cir. 1988). Review of a
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`proposed class-action settlement typically proceeds in two stages. Martin v. Cargill, Inc., 295
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`F.R.D. 380, 383 (D. Minn. 2013). At the preliminary approval stage, the court determines
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`CASE 0:18-cv-01776-JRT-HB Doc. 756 Filed 04/15/21 Page 10 of 19
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`whether the settlement is within the range of possible approval and whether class members
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`should be notified of the terms of the proposed settlement.4 White v. Nat’l Football League, 822
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`F. Supp. 1389, 1416 (D. Minn. 1993). The purpose of a court’s preliminary evaluation of
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`proposed settlements is simply to determine whether it is within the range of reasonableness,
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`and thus, whether notice to the Class of the terms and conditions of the settlement, and
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`scheduling a formal fairness hearing, are worthwhile. 4 Newberg on Class 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 JBS should be granted preliminary approval because the settlement is fair,
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`reasonable, and adequate.
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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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`In making a final determination of settlement approval, the district court ultimately is
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`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).
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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 Pex
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`Plumbing Prods. Liab. Litig., 08-MDL-1958 (ADM/AJB), 2013 WL 716088, at *6 (D. Minn. Feb.
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`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 is within the range of possible approval because there
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`are no glaring substantive or procedural deficiencies. The Settlement Agreement is the product
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`of arm’s length negotiations, mediated by highly experienced and nationally renowned
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`mediator Professor Eric Green of Resolutions, LLC. CIIPPs have developed and assessed
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`their claims and defenses of JBS. The CIIPPs and JBS are represented by experienced counsel
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`and the Settlement was reached after years of litigation.
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`B. The Settlement Agreement Provides Significant Relief.
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`The Settlement Agreement provides significant relief to CIIPP class members, far
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`greater than the threshold “adequate” relief required by Fed. R. Civ. P. 23(e)(2)(C). The
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`Settlement Agreement requires JBS to pay $12,750,000.00 into the Settlement Fund within 14
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`days of the Court’s preliminary approval. (Ex. A, ¶ 9). The Settlement Fund will be used to
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`compensate the Settlement Class for damages suffered and expenses incurred, and potentially
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`CASE 0:18-cv-01776-JRT-HB Doc. 756 Filed 04/15/21 Page 12 of 19
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`for the benefit of pursuing claims against non-settling defendants. In addition to the monetary
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`relief, the terms of the Settlement Agreement require JBS to provide material cooperation to
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`CIIPPs for the benefit of pursuing claims against the non-settling defendants. The cooperation
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`that CIIPPs have secured from the settlement will bolster CIIPPs’ claims against the seven
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`non-settling Defendants.
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`IV. The Court Should Provisionally Certify the Settlement Class.
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`At the preliminary stage, the Court must also determine whether to certify the proposed
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`Settlement Class for settlement purposes under Rule 23. Amchem Prods., Inc. v. Windsor, 521
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`U.S. 591, 620 (1997) (describing Rule 23(a) requirements as (1) numerosity, (2) commonality,
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`(3) typicality, and (4) adequacy of representation). A settlement class may be certified if it
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`satisfies each requirement set forth in Rule 23(a), and at least one of the separate provisions
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`set forth in Rule 23(b). Id. at 613–14; Smith v. ConocoPhillips Pipe Line Co., 801 F.3d 921, 925 (8th
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`Cir. 2015).
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`The CIIPPs seek certification of a Settlement Class defined 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
`Settlement Class Period for their own business use in commercial food
`preparation.
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`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
`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 government 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.
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`CASE 0:18-cv-01776-JRT-HB Doc. 756 Filed 04/15/21 Page 13 of 19
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`(Ex. A, ¶ 5). The proposed Settlement Class meets the threshold requirements of Rule 23(a)
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`and satisfies the requirements of Rule 23(b)(3).
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`A. The Proposed Settlement Class Satisfies the Requirements of Rule 23(a).
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`1. Numerosity
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`Rule 23(a)(1), Fed. R. Civ. P., requires that the class be “so numerous that joinder of
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`all members is impracticable.” CIIPPs estimate that there are hundreds of thousands of
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`Settlement Class members. This easily satisfies the numerosity requirements. See Ark. Educ.
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`Ass’n v. Bd. of Educ. of Portland, Ark. Sch. Dist., 446 F.2d 763, 765–66 (8th Cir. 1971) (approving
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`class of twenty members); Lockwood Motors, Inc. v. Gen. Motors Corp., 162 F.R.D. 569, 574 (D.
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`Minn. 1995) (approving class with as few as forty members).
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`2. Commonality
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`Rule 23(a)(2), Fed. R. Civ. P., requires that there be “questions of law of fact common
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`to the class.” The threshold for commonality is low, requiring only that the legal question
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`“linking the class members is substantially related to the resolution of the litigation.” DeBoer v.
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`Mellon Mortg. Co., 64 F.3d 1171, 1174 (8th Cir. 1995); see In re Hartford Sales Practices Litig., 192
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`F.R.D. 592, 603 (D. Minn. 1999) (“[T]he commonality requirement imposes a very light
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`burden on Plaintiff seeking to certify a class and is easily satisfied.”). For a class to be certified,
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`plaintiffs need to demonstrate “that common issues prevail as to the existence of a conspiracy
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`and the fact of injury.” Blades v. Monsanto Co., 430 F.3d 562, 566 (8th Cir. 2005).
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`Common questions prevail here about whether Defendants illegally conspired to fix
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`the supply and price of Pork in the United States. Common questions also prevail as to
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`CASE 0:18-cv-01776-JRT-HB Doc. 756 Filed 04/15/21 Page 14 of 19
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`whether CIIPPs were injured because of Defendants’ anti-competitive conduct. The
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`Settlement Class satisfies the commonality requirement.
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`3. Typicality
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`Rule 23(a)(3) requires that a representative plaintiff’s claims be typical of those of other
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`class members. This requirement is “fairly easily met so long as other class members have
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`claims similar to the named plaintiff.” DeBoer, 64 F.3d at 1174. “Factual variations in the
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`individual claims will not normally preclude class certification if the claim arises from the same
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`event or course of conduct as the class claims and gives rise to the same legal or remedial
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`theory.” Alpern v. UtiliCorp United, Inc., 84 F.3d 1525, 1540 (8th Cir. 1996).
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`The CIIPPs allege claims that arise out of the same alleged conduct of Defendants—
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`whether they illegally conspired to fix the supply and price of Pork in the United States. The
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`representative Plaintiffs of the CIIPP Settlement Class each allege that they paid artificially
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`inflated prices for Pork, which exceeded the amount they would have paid if the price for Pork
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`had been determined by a competitive market. (Dkt. 432, ¶ 7). Each individual class member
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`has the same interests as the class representatives, suffered the same or similar harm, and must
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`prove the same conspiracy. The typicality requirement is therefore satisfied.
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`4. Adequacy of Representation
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`Rule 23(a)(4) requires that “the representative parties will fairly and adequately protect
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`the interests of the class.” The focus of Rule 23(a)(4) is “whether (1) the class representatives
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`have common interests with the members of the class, and (2) whether the class
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`representatives will vigorously prosecute the interests of the class through qualified counsel.”
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`Paxton v. Union Nat’l Bank, 688 F.2d 552, 562–63 (8th Cir. 1982).
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`The CIIPP class representatives have common interests with the members of the
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`Settlement Class. They share interests in obtaining the best possible monetary recovery and
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`securing cooperation against non-settling Defendants. The named representatives have and
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`will vigorously pursue this matter through qualified counsel. Undersigned counsel have
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`significant antitrust experience and have successfully led other antitrust MDL actions
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`involving intermediate indirect purchasers. (See Mem. in Support of Motion to Appoint
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`Counsel for Commercial and Indirect Purchaser Plaintiffs, Dkt. 114). The Court has
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`recognized that the undersigned counsel will adequately represent the CIIPPs. (Order
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`Appointing Co-Lead Counsel, Dkt. 150). Counsel thus far has vigorously prosecuted the
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`interests of the CIIPPs throughout motion practice, discovery, and settlement negotiations.
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`B. The Proposed Settlement Class Satisfies the Requirements of Rule 23(b).
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`In addition to satisfying the requirements of Rule 23(a), plaintiffs seeking class
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`certification must show that “questions of law or fact common to class members predominate
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`over any questions affecting only individual members, and that a class action is superior to
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`other methods for fairly and efficiently adjudicating the controversy.” Fed. R. Civ. P. 23(b).
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`“The requirements of ‘predominance of common issues’ and ‘superiority’ are stated in Rule
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`23(b)(3) in the conjunctive; both must be present for an action to be maintained under that
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`provision.” Bryant v. Bonded Account Serv./Checking Recovery, 208 F.R.D. 251, 261 (Minn. 2000).
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`The Rule 23(b) predominance inquiry “tests whether proposed classes are sufficiently
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`cohesive to warrant adjudication by representation.” Amchem Prods., Inc., 521 U.S. at 623. This
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`test is readily met in certain cases, including those alleging violations of antitrust laws. Id. at
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`625; see also In re Potash Antitrust Litig., 159 F.R.D. 682, 693 (D. Minn. 1995) (“As a rule of
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`thumb, a price fixing antitrust conspiracy model is generally regarded as well suited for class
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`treatment.”); 4 Newberg on Class Actions § 18.28 at 102 (4th ed. 2002) (“As a rule, the
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`allegation of a price-fixing conspiracy is sufficient to establish predominance of common
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`questions.”). Slight variation in actual damages does not defeat predominance if there are
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`common legal questions and common facts. Custom Hair Design by Sandy v. Cent. Payment Co.,
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`LLC, 984 F.3d 595, 601 (8th Cir. 2020).
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`Questions of law or fact common to the CIIPP Settlement Class predominate over any
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`questions affecting only individual members. These questions, subject to common proof,
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`include whether Defendants engaged in anticompetitive conduct and/or conspired to
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`artificially lower Pork output and raise prices, and whether the CIIPPs paid artificially inflated
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`prices for Pork during the class period. See Sandusky Wellness Ctr., LLC v. Medtox Sci, Inc., 821
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`F.3d 992, 998 (8th Cir. 2016) (“If the same evidence will suffice for each member to make a
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`prima facie showing, then it becomes a common question.”). Therefore, the CIIPP class
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`satisfies the predominance requirement.
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`Plaintiffs seeking class certification must also show that a class action is superior to
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`individual claims. Rule 23(b) provides four pertinent considerations: (A) the interest of the
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`class members in individually controlling the prosecution or defense of separate actions; (B)
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`whether other litigation concerning the controversy already exists; (C) the desirability of
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`concentrating the litigation in the particular forum; and (D) any difficulties in managing a class
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`action. Fed. R. Civ. P. 23(b)(3)(A)–(D). But when a class is being certified for settlement, the
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`Court “need not examine the Rule 23(b)(3)(A–D) manageability issues, because it will not be
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`managing a class action trial.” In re Zurn Pex Plumbing Prods. Liab. Litig., 2013 WL 716088, at *5
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`(citing Amchem Prods., Inc., 521 U.S. at 620).
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`Where class wide litigation of common issues will reduce litigation costs and promote
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`greater efficiency, a class action may be superior to other methods of litigation. Califano v.
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`Yamasaki, 442 U.S. 682, 701 (1979). A class action is the superior method to adjudicate this
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`litigation because it promotes greater efficiency than individually litigating hundreds or
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`thousands of class members’ claims. The requirements of Rule 23(b) are satisfied in this case.
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