`
`UNITED STATES DISTRICT COURT
`
`DISTRICT OF MINNESOTA
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`
`
`IN RE PORK ANTITRUST
`LITIGATION
`
`
`This Document Relates To:
`
`COMMERCIAL AND
`INSTITUTIONAL INDIRECT
`PURCHASER PLAINTIFF ACTION
`
`
`
`
`Case No. 18-cv-1776 (JRT/HB)
`
`
`
`Memorandum in Support of Motion
`for Final 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. 968 Filed 10/20/21 Page 2 of 24
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`Table of Contents
`
`Introduction ......................................................................................................................................... 1
`
`Factual Background ............................................................................................................................. 2
`
`
`The Settlement Terms ............................................................................................... 3
`
`The Notice Plan .......................................................................................................... 4
`
`I.
`
`II.
`
`III. Class Member Reaction ............................................................................................. 5
`
`
`Legal Standard ...................................................................................................................................... 6
`
`Argument .............................................................................................................................................. 7
`
`
`The Settlement is Fair, Reasonable, and Adequate ................................................ 7
`
`I.
`
`
`II.
`
`
`A.
`
`B.
`
`C.
`
`D.
`
`A.
`
`
`The Likelihood of Success on the Merits Weighed Against the
`Relief Offered in the Settlement Supports Final Approval ...................... 7
`
`The Complexity, Expense, and Likely Duration of Continued
`Litigation Favor Final Approval .................................................................. 8
`
`The Class Member Reaction Favors Final Approval ................................ 9
`
`There Were No Objections to the Notice Content or Plan .................. 11
`
`Timing of CAFA Notices and Final Approval Orders ........................... 12
`
`The Settlement Class Satisfies the Requirements of Rule 23(a) ............ 12
`
`1.
`
`The Settlement Class is Sufficiently Numerous .......................... 12
`
`i
`
`The Circumstances of the Settlement, and the Judgment of
`Experienced Counsel Who Have Evaluated the Case Supports
`Approval .......................................................................................................... 9
`
`Notice of the Settlements was Proper Under Federal Rule of Civil
`Procedure 23 and Met Due Process Requirements ............................................. 10
`
`A.
`
`B.
`
`III. Certification of the Settlement Class is Appropriate ........................................... 12
`
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`
`2.
`
`3.
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`Common Questions of Law and Fact Exist ................................ 13
`
`4.
`
`The Representative Plaintiffs’ Claims are Typical of Those of
`the Settlement Class ........................................................................ 13
`
`CIIPP Class Representatives and Their Counsel Have Fairly
`and Adequately Represented the Interests of the Class
`Members ........................................................................................... 14
`
`The Settlement Class Satisfies the Requirements of Rule 23(b) ............ 15
`
`Common Legal and Factual Questions Predominate ................. 16
`
`1.
`
`2.
`
`B.
`
`
`IV.
`
`Class Actions Settlement is Superior to Other Methods of
`Adjudication ..................................................................................... 16
`
`The Court Should Appoint Settlement Class Counsel and Class
`Representatives ......................................................................................................... 17
`
`
`Conclusion .......................................................................................................................................... 17
`
`
`
`
`
`ii
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`Table of Authorities
`
`
`Cases
`
`Alpern v. UtiliCorp United, Inc., 84 F.3d 1525 (8th Cir. 1996) ........................................................ 14
`
`AmChem Prod., Inc. v. Windsor, 521 U.S. 591, 117 S. Ct. 2231 (1997) ............................. 12, 15, 16
`
`Ark. Educ. Ass’n v. Bd. of Educ. of Portland, Ark. Sch. Dist., 446 F.2d 763 (8th Cir. 1971) ......... 12
`
`Blades v. Monsanto Co., 430 F.3d 562 (8th Cir. 2005) ...................................................................... 13
`
`Bryant v. Bonded Account Serv./Checking Recovery, 208 F.R.D. 251 (D. Minn. 2000) ..................... 15
`
`Califano v. Yamasaki, 442 U.S. 682 (1979) ....................................................................................... 16
`
`Custom Hair Design by Sandy v. Cent. Payment Co., LLC, 984 F.3d 595 (8th Cir. 2020) ............... 15
`
`DeBoer v. Mellon Mortg. Co., 64 F.3d 1171 (8th Cir. 1995) .................................................... 7, 9, 13
`
`Grunin v. Int’l House of Pancakes, 513 F.2d 114 (8th Cir. 1975) ................................................. 7, 11
`
`In re Hartford Sales Practices Litig., 192 F.R.D. 592 (D. Minn. 1999) ............................................. 13
`
`In re Potash Antitrust Litig., 159 F.R.D. 682 (D. Minn. 1995) ........................................................ 15
`
`In re Pressure Sensitive Lablestock Antitrust Litig., 584 F. Supp. 2d 697 (M.D. Pa. 2008) ................ 8
`
`In re UnitedHealth Grp., Inc. S’holder Derivative Litig.,
`
`631 F. Supp. 2d 1151 (D. Minn. 2009) .......................................................................... 9, 10
`
`In re Wireless Tel. Fed. Cost Recovery Fees Litig., 396 F.3d 922 (8th Cir. 2005) ................................. 7
`
`In re Zurn Pex Plumbing Prods. Liab. Litig.,
`
`2013 WL 716088 (D. Minn. Feb. 27, 2013) ..................................................... 6, 10, 11, 16
`
`Jones v. Flowers, 547 U.S. 220 (2006) ................................................................................................. 11
`
`Lockwood Motors, Inc. v. Gen. Motors Corp., 162 F.R.D. 569 (D. Minn. 1995) .............................. 13
`
`Martin v. Cargill, Inc., 295 F.R.D. 380 (D. Minn. 2013) ............................................................. 6, 10
`
`MSK Eyes, Ltd. v. Wells Fargo Bank, N.A., 546 F.3d 533 (8th Cir. 2008) ...................................... 6
`
`
`iii
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`Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306 (1950) ........................................... 10, 11
`
`Paxton v. Union Nat’l Bank, 688 F.2d 552 (8th Cir. 1982) ............................................................. 14
`
`Petrovic v. Amoco Oil Co., 200 F.3d 1140 (8th Cir. 1999) ............................................................ 8, 10
`
`Sandusky Wellness Ctr., LLC v. Medtox Sci, Inc., 821 F.3d 992 (8th Cir. 2016) ............................. 16
`
`Smith v. Conoco Phillips Pipe Line Co., 801 F.3d 921 (8th Cir. 2015) .............................................. 12
`
`Smith v. SEECO, Inc., 965 F.3d 1021 (8th Cir. 2017) .................................................................... 11
`
`Stoetzner v. U.S. Steel Corp., 897 F.2d 115 (3d Cir. 1990) ................................................................. 9
`
`TBK Partners, Ltd. v. W. Union Corp., 675 F.2d 456 (2d Cir. 1982) ................................................ 9
`
`Texas Indus., Inc. v. Radcliff Materials, Inc., 451 U.S. 630 (1981) ....................................................... 8
`
`UAW v. General Motors Corp., 497 F.3d 615 (6th Cir. 2007) ........................................................... 6
`
`Van Horn v. Trickey, 840 F.2d 604 (8th Cir. 1988) ........................................................................... 6
`
`Wal-Mart Stores, Inc. v. Visa U.S.A., Inc., 396 F.3d 96 (2d Cir. 2005),
`cert. denied 544 U.S. 1044 (2005) ............................................................................................. 9
`
`
`Welsch v. Gardenbring, 667 F. Supp. 1284 (D. Minn. 1987) .............................................................. 8
`
`White v. Nat’l Football League, 822 F. Supp. 1389 (D. Minn. 1993) ................................................ 6
`
`
`Statutes
`
`Federal Rule of Civil Procedure 23 ............................................................................................. 7, 11
`
`Federal Rule of Civil Procedure 23(a)............................................................................................. 12
`
`Federal Rule of Civil Procedure 23(a)(1) ........................................................................................ 12
`
`Federal Rule of Civil Procedure 23(a)(2) ........................................................................................ 13
`
`Federal Rule of Civil Procedure 23(a)(3) ........................................................................................ 13
`
`Federal Rule of Civil Procedure 23(a)(4) ........................................................................................ 14
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`iv
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`Federal Rule of Civil Procedure 23(b) ............................................................................... 15, 16, 17
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`Federal Rule of Civil Procedure 23(b)(3) .......................................................................... 10, 15, 16
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`Federal Rule of Civil Procedure 23(c)(2)(B) ........................................................................... 10, 11
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`Federal Rule of Civil Procedure 23(e) .............................................................................................. 7
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`Federal Rule of Civil Procedure 23(e)(1) ........................................................................................ 10
`
`Federal Rule of Civil Procedure 23(e)(2) .......................................................................................... 6
`
`Federal Rule of Civil Procedure 23(g) ............................................................................................ 17
`
`
`
`Other Authorities
`
`28 U.S.C. § 1715(b) ........................................................................................................................... 12
`
` 4
`
` Newberg on Class Actions § 11.26 ................................................................................................ 6
`
` Newberg on Class Actions § 11.41 (4th ed. 2005) ....................................................................... 6
`
` Newberg on Class Actions § 18.28 (4th ed. 2002) ..................................................................... 15
`
`v
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` 4
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` 4
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`CASE 0:18-cv-01776-JRT-HB Doc. 968 Filed 10/20/21 Page 7 of 24
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`
`
`Introduction
`
`The Commercial and Institutional Indirect Purchaser Plaintiffs (“CIIPPs”) seek the
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`Court’s final approval of the settlement of their claims against the JBS defendants (JBS USA
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`Food Company; JBS USA Food Company Holdings; and Swift Pork Company). Under this
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`“ice-breaker” settlement, JBS will pay $12,750,000.00 ($12.75 million) to the CIIPP settlement
`
`class. The settlement also provides meaningful cooperation, which will assist the CIIPPs in
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`their pursuit of the remaining Defendants. No class member objected or opted out.
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`The settlement provides excellent benefits considering the conduct, damage, and
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`litigation risks related to JBS. The cash component is a reasonable compromise of the liability
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`claim in comparison to the volume of commerce believed to be affected by JBS’s conduct.
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`The settlement also reflects the value of receiving money and cooperation now, which benefit
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`the CIIPPs’ claims against any new or non-settling Defendants.
`
`Notice of the settlement, as required by Federal Rule of Civil Procedure 23, was
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`provided through the notice plan the Court previously approved. The response from the
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`members of the settlement class was uniformly positive. No class member objected to the
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`settlement, attorney fees, litigation expenses, or the request to set aside funds for future class
`
`representative service awards. This is significant given that the settlement class consists of
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`sophisticated businesses with their own counsel who can analyze the merits of these
`
`settlements. The favorable reception of this settlement provides good evidence that final
`
`approval should be granted, and final judgment be entered.
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`
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`
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`1
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`
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`CASE 0:18-cv-01776-JRT-HB Doc. 968 Filed 10/20/21 Page 8 of 24
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`Factual Background
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`This putative class action alleges that Defendants1 engaged in a price-fixing conspiracy
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`to artificially constrict the supply of pork products in the domestic market of the United States.
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`The CIIPPs allege that Defendants conspired to constrain the supply, and fix the price, of
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`pork2 from at least 2009 through the commencement of the present action.3 (See CIIPP Fourth
`
`Consolidated and Amended Complaint (Dkt. 808)).4 The CIIPPs allege that Defendants—
`
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`Defendants in this action include Agri Stats, Inc.; Clemens Food Group, LLC and The
`1
`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
`Fresh Meats, Inc. and Tyson Prepared Foods, Inc.
`
` 2
`
`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. (Dkt. 757).
`
` 3
`
`The CIIPP representative plaintiffs are: Sandee’s Bakery; Francis T. Enterprises d/b/a
`
`Erbert & Gerbert’s; Joe Lopez, d/b/a Joe’s Steak and Leaf; Longhorn’s Steakhouse; The
`Grady Corporation; Mcmjoynt LLC d/b/a The Breakfast Joynt; Edley’s Restaurant Group,
`LLC; Basil Mt. Pleasant, LLC; Basil Charlotte, Inc.; Farah’s Courtyard Deli, Inc.; and Tri-Ten
`LLC.
`
` 4
`
`The Court granted Defendants’ initial motions to dismiss Plaintiffs’ complaints, with
`
`leave to amend, in August 2019. (Dkt. 360.) On October 16, 2020, the Court denied
`Defendants’ motions to dismiss the CIIPPs Third Consolidated Amended Complaint, except
`as to certain state-law claims. (Dkts. 519, 520).
`
`2
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`
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`CASE 0:18-cv-01776-JRT-HB Doc. 968 Filed 10/20/21 Page 9 of 24
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`through their co-conspirator, Agri Stats—exchanged detailed, competitively sensitive, and
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`closely guarded non-public information about price, capacity, sales volume, and demand. (Id.
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`¶ 2). Agri Stats provided highly sensitive “benchmarking” reports to most pork integrators,
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`thereby allowing competitors to compare their profits or performance against that of other
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`companies. (Id. ¶ 3). The effect of this anti-competitive exchange of non-public information
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`allowed pork integrators to control the supply and price of pork. (Id.)
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`The cases in this coordinated litigation, unlike some civil-antitrust actions, were
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`brought without the assistance of a leniency applicant under the Department of Justice’s
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`Corporate Leniency Program and without a formal antitrust investigation by the Department
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`of Justice. On October 15, 2018, the Court appointed the undersigned as Interim Co-Lead
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`Class Counsel for the CIIPPs. (Dkt. 150). Since filing their first complaint, the CIIPPs have
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`continued their investigation and development of their case. During ongoing discovery,
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`Interim Co-Lead Class Counsel negotiated a proposed settlement with JBS. The Court
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`preliminarily approved the settlement between CIIPPs and JBS on May 3, 2021. (Dkt. 767).
`
`I.
`
`The Settlement Terms
`
`This first CIIPP settlement came after substantial adversarial litigation with Defendants
`
`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. (See
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`Declaration of Shawn Raiter). The parties participated in fact-gathering sessions, informational
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`meetings, and several mediation sessions with a nationally recognized mediator. (Id.)
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`The CIIPPs negotiated a Settlement which provides a substantial cash benefit. Under
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`the Settlement, JBS will pay $12,750,000 (twelve million seven hundred fifty thousand U.S.
`
`3
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`
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`CASE 0:18-cv-01776-JRT-HB Doc. 968 Filed 10/20/21 Page 10 of 24
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`dollars) to the CIIPP Settlement Class.5 Of that amount, the Court approved up to $500,000
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`to be used for reasonable costs of disseminating notice of the Settlement Agreement, including
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`the cost of administration. (Dkt. 812). The Settlement may, upon the Court’s approval, also
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`be of further benefit by being utilized to fund litigation expenses against the non-settling
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`Defendants.
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`On top of the $12,750,000 in cash payments, JBS is also required to provide the CIIPPs
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`with various forms of cooperation. The terms of the cooperation were outlined in a
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`confidential side letter agreement that remains available upon request by the Court for in camera
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`review. (Settlement Agreement, Ex. A, ¶ 10 (Dkt. 757-1)).
`
`II.
`
`The Notice Plan
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`The Court preliminarily approved the settlement on May 3, 2021. (Dkt. 767).
`
`Separately, the Court approved the CIIPPs proposed notice plan. (Dkt. 812). Pursuant to that
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`Order, the CIIPPs effectuated the proposed notice plan through class action notice consultant
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`Epiq Class Action & Claims Solutions, Inc. (“Epiq”) and its business unit Hilsoft Notifications
`
`(“Hilsoft”). Through Epiq, Hilsoft, and Cameron Azari—a nationally-recognized expert in
`
`
`5 The Settlement Class is defined as: “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.
`
`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 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.” (Settlement Agreement, Dkt. 757-1).
`
`
`4
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`CASE 0:18-cv-01776-JRT-HB Doc. 968 Filed 10/20/21 Page 11 of 24
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`the field of legal notice—potential CIIPP class members were identified and mailed a long
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`form notice that provided information about the settlement. (See Declaration of Cameron
`
`Azari). The notice consultant also sent long form notices to email addresses associated with
`
`potential class members. (Id.) A multi-faceted notice program intended to provide the best
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`notice practicable under the circumstances was therefore carried out and included:
`
` Individual Email Notice to approximately 90,000 Class Members;
` Establishment of a Settlement Website and toll-free telephone number;
` Targeted Banner Notices on advertising networks Google Display Network and Verizon
`(Yahoo) Audience Network;
` Advertising on social media websites, including Facebook and LinkedIn;
` Sponsored search listings on the three most-visited search engines: Google, Yahoo!, and
`Bing; and
` An Information Release issued over PR newswire to approximately 5,000 general media
`(print and broadcast) outlets, including local and national newspapers, magazines,
`national wire services, television, and radio broadcast, as well as approximately 4,500
`websites, online databases, internet networks, and social media networks, and also
`distributed to more than 530 journalists that report specifically on restaurants and the
`food industry.
`
`(See id.) The notice plan “reached” approximately 70 percent of the potentially eligible class
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`members. (Id.). Class members were notified of the Settlement Website, which provided
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`information and further case-related documents such as the long-form notice, short-form
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`notice, and the full text of the Settlement Agreement. (Id.). The Claims-Administrator also
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`provided instructions on how to attend the Court’s fairness hearing, details on how to object
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`to the Settlement or opt out of the Settlement Class, and other details regarding the Settlement
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`and approval process. (Id.).
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`III. Class Member Reaction
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`The reaction to the Settlement Agreement was uniformly positive. No class member
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`objected to any term of the Settlement or opted out of the Settlement class. (Id.).
`
`5
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`CASE 0:18-cv-01776-JRT-HB Doc. 968 Filed 10/20/21 Page 12 of 24
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`
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`The district court must review class action settlements to ensure that they are “fair,
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`Legal Standard
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`reasonable, and adequate,” Fed. R. Civ. P. 23(e)(2). “The policy in federal court favoring the
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`voluntary resolution of litigation through settlement is particularly strong in the class action
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`context.” White v. Nat’l Football League, 822 F. Supp. 1389, 1416 (D. Minn. 1993); see MSK Eyes,
`
`Ltd. v. Wells Fargo Bank, N.A., 546 F.3d 533, 541 (8th Cir. 2008); accord UAW v. General Motors
`
`Corp., 497 F.3d 615, 632 (6th Cir. 2007) (federal policy favors settlement of class actions).
`
`Review of a proposed class-action settlement typically proceeds in two stages: preliminary
`
`approval and final approval. See Martin v. Cargill, Inc., 295 F.R.D. 380, 383 (D. Minn. 2013).
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`Between preliminary and final approval, the class must be notified of the proposed settlement
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`and be given an opportunity to object, opt out of the class, or be heard. 4 Newberg on Class
`
`Actions § 11.26.
`
`A district court “has broad discretion in evaluating a class action settlement.” Van Horn
`
`v. Trickey, 840 F.2d 604, 606–07 (8th Cir. 1988). In exercising this discretion, the court gives
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`“great weight” to and may rely on the judgment of experienced counsel in its evaluation of a
`
`proposed settlement. In re Zurn Pex Plumbing Prods. Liab. Litig., 08-MDL-1958 (ADM/AJB),
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`2013 WL 716088, at *6 (D. Minn. Feb. 27, 2013). Courts adhere to “an initial presumption of
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`fairness when a proposed class settlement, which was negotiated at arm’s length by counsel
`
`for the class, is presented for court approval.” 4 Newberg on Class Actions § 11.41 (4th ed.
`
`2005) (collecting cases). “In examining a proposed compromise for approval or disapproval
`
`… the court does not try the case. The very purpose of compromise is to avoid the delay and
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`6
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`
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`CASE 0:18-cv-01776-JRT-HB Doc. 968 Filed 10/20/21 Page 13 of 24
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`expense of such a trial.” Grunin v. Int’l House of Pancakes, 513 F.2d 114, 124 (8th Cir. 1975)
`
`(quotation omitted).
`
`I.
`
`The Settlement is Fair, Reasonable, and Adequate.
`
`Argument
`
`The Settlement with JBS meets the criteria required for final approval under Rule 23
`
`of the Federal Rules of Civil Procedure. It provides meaningful benefits and was reached after
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`negotiations between experienced counsel who were armed with sufficient background about
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`the merits and defenses to the claims asserted. The settlements reflect a reasonable
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`compromise considering the liability, damages, and procedural uncertainties facing both the
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`CIIPPs and JBS.
`
`In making the determination under Rule 23(e) of whether the settlement is fair,
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`reasonable, and adequate, the district court considers a number of factors, including: the merits
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`of the plaintiff’s case, weighed against the terms of the settlement; the defendant’s financial
`
`condition; the complexity and expense of further litigation; and the amount of opposition to
`
`the settlement. In re Wireless Tel. Fed. Cost Recovery Fees Litig., 396 F.3d 922, 931 (8th Cir. 2005).
`
`The court may also consider procedural fairness to ensure the settlement is not the product of
`
`fraud or collusion. Id. And the court may consider whether a settlement resulted from arm’s
`
`length negotiations, and whether a skilled mediator was involved. DeBoer v. Mellon Mortg. Co.,
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`64 F.3d 1171, 1178 (8th Cir. 1995).
`
`A.
`
`The Likelihood of Success on the Merits Weighed Against the Relief
`Offered in the Settlement Supports Final Approval.
`
`The strength of the case for plaintiffs on the merits, balanced against the amount
`
`
`
`offered in settlement, is an important consideration in determining whether a settlement is
`
`7
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`CASE 0:18-cv-01776-JRT-HB Doc. 968 Filed 10/20/21 Page 14 of 24
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`fair, reasonable, and adequate. Petrovic v. Amoco Oil Co., 200 F.3d 1140, 1150 (8th Cir. 1999).
`
`While the CIIPPs believe they have a strong case against JBS on the merits, success is by no
`
`means guaranteed. The Settlement provides, as discussed, substantial benefits in the form of
`
`cash and cooperation. The fact of certain substantial monetary compensation and cooperation
`
`is significant to this factor because, even if CIIPPs could potentially recover greater damages
`
`at trial, the non-settling defendants remain jointly and severally liable for any damages resulting
`
`from JBS’s Pork sales to CIIPPs during the class period. See Texas Indus., Inc. v. Radcliff Materials,
`
`Inc., 451 U.S. 630, 646 (1981); see also In re Pressure Sensitive Lablestock Antitrust Litig., 584 F. Supp.
`
`2d 697, 702 (M.D. Pa. 2008) (“[T]he benefit of obtaining the cooperation of the Settling
`
`Defendants tend to offset the fact that they would be able to withstand a larger judgment.”).
`
`Interim Co-Lead Counsel has investigated and analyzed, among other things, the
`
`strength of the liability claims against JBS, the volume of affected commerce, the value of the
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`cooperation being provided, and the range of damage that could be proven at trial against JBS.
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`Counsel believes this Settlement to be a positive outcome for the CIIPPs—it reflects both the
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`strength of the CIIPPs case and the risk that JBS could prevail on some of its arguments. The
`
`Court may afford “great weight” to the opinions of experienced counsel. E.g., Welsch v.
`
`Gardenbring, 667 F. Supp. 1284, 1295 (D. Minn. 1987). This factor weighs in favor of final
`
`approval.
`
`B.
`
`The Complexity, Expense, and Likely Duration of Continued Litigation
`Favor Final Approval.
`
`
`
`This Court has had substantial opportunity to consider the claims and defenses in this
`
`litigation and knows that complex antitrust litigation of this scope has many inherent risks that
`
`settlements extinguish. This case was commenced more than three years ago, and it would
`
`8
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`likely continue for several more years, at significant additional expense, if litigated through an
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`adversarial judgment any appeals. Even then, “the history of antitrust litigation is replete with
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`cases in which antitrust plaintiffs succeeded at trial on liability, but recovered no damages, or
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`only negligible damages, at trial, or on appeal.” Wal-Mart Stores, Inc. v. Visa U.S.A., Inc., 396
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`F.3d 96, 118 (2d Cir. 2005) (quotation omitted), cert. denied, 544 U.S. 1044 (2005). This factor
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`also weighs heavily in favor of final approval.
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`C.
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`The Class Member Reaction Favors Final Approval.
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`The absence of negative reaction to a settlement weighs in favor of approval. In re
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`UnitedHealth Grp., Inc. S’holder Derivative Litig., 631 F. Supp. 2d 1151, 1158 (D. Minn. 2009);
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`accord Stoetzner v. U.S. Steel Corp., 897 F.2d 115, 118–19 (3d Cir. 1990) (holding that objections
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`by about 10% of class “strongly favors settlement”); see also TBK Partners, Ltd. v. W. Union Corp.,
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`675 F.2d 456, 458, 462 (2d Cir. 1982) (approving settlement despite objections of large number
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`of class). Here, notice of the Settlement was sent and published to the potential class, and no
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`class member objected to any term of the Settlement or opted-out of the class. The lack of
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`objection speaks loudly about the benefits of the Settlement. This factor counsels in support
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`of final approval.
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`D.
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`The Circumstances of the Settlement, and the Judgment of Experienced
`Counsel Who Have Evaluated the Case Supports Approval.
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`There are several other miscellaneous factors the district court considers in determining
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`whether a settlement is fair, reasonable, and adequate. All of them support final approval. The
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`experience and opinion of counsel on both sides may be considered in determining whether a
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`settlement is fair, reasonable, and adequate. DeBoer, 64 F.3d at 1178. Also, where sufficient
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`discovery has been conducted and the parties have bargained at arms-length, there is a
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`CASE 0:18-cv-01776-JRT-HB Doc. 968 Filed 10/20/21 Page 16 of 24
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`presumption in favor of the settlement. In re UnitedHealth Grp. Inc. S’holder Derivative Litig., 631
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`F. Supp. 2d at 1158; see also In re Zurn Pex Plumbing Prods. Liab. Litig., No. 08-MDL-1959, 2013
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`WL 716088, at *6 (D. Minn. Feb. 27, 2013) (“Settlement agreements are presumptively valid,
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`particularly where a settlement has been negotiated at arm’s-length, discovery is sufficient,
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`[and] the settlement proponents are experienced in similar matters….”).
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`This settlement is the result of extensive negotiations, with the assistance of an
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`experienced mediator, between counsel actively involved and informed with the case. The
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`judgment of counsel under these circumstances should be considered. See Petrovic, 200 F.3d at
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`1149. Finally, the “absence of any glaring substantive or procedural deficiencies,” in
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`conjunction with the other factors considered, supports final approval. Martin, 295 F.R.D. at
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`383.
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`II. Notice of the Settlements was Proper Under Federal Rule of Civil Procedure 23
`and Met Due Process Requirements.
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`The Court is required to “direct notice in a reasonable manner to all class members
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`who would be bound by the [proposed settlement].” Fed. R. Civ. P. 23(e)(1). For Rule 23(b)(3)
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`actions, “the court must direct to class members the best notice that is practicable under the
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`circumstances, including individual notice to all members who can be identified through
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`reasonable effort.” Fed. R. Civ. P. 23(c)(2)(B).
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`The notice of a class action settlement need only satisfy the broad “reasonableness”
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`standards imposed by due process. Petrovic, 200 F.3d at 1153. A notice is adequate if
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`“reasonably calculated, under all the circumstances, to apprise interested parties of the
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`pendency of the action and afford them an opportunity to present their objections.” Id.
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`(quoting Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950)). To satisfy due
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`CASE 0:18-cv-01776-JRT-HB Doc. 968 Filed 10/20/21 Page 17 of 24
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`process, the notice must reflect a desire to inform. Mullane, 339 U.S. at 315. The mechanics of
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`the notice process “are left to the discretion of the court subject only to the broad
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`‘reasonableness’ standard imposed by due-process.” Grunin, 513 F.2d at 121. The notice plan
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`should take reasonable steps to update addresses before mailing and provide for re-mailing of
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`notices to better addresses when returned as undeliverable. Jones v. Flowers, 547 U.S. 220, 226–
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`27 (2006).
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`The “best notice practicable” does not mean actual notice, nor does it require ind