United States District Court, D. Vermont
ALICE H. ALLEN, LAURANCE E. ALLEN, d/b/a Al-lens Farm, GARRET SITTS, RALPH SITTS, JONATHAN HAAR, CLAUDIA HAAR, and RICHARD SWANTAK, on behalf of themselves and all others similarly situated, Plaintiffs,
DAIRY FARMERS OF AMERICA, INC., and DAIRY MARKETING SERVICES, LLC, Defendants.
OPINION AND ORDER GRANTING MOTION FOR APPOINTMENT OF ADDITIONAL REPRESENTATIVE PARTY, DENYING MOTION FOR APPOINTMENT OF ADDITIONAL SUBCLASS COUNSEL, AND GRANTING IN PART AND DENYING IN PART MOTION TO INTERVENE (Docs. 653 & 669)
CHRISTINA REISS, Chief District Judge.
Pending before the court are motions to intervene (Doc. 669) and to appoint additional class representatives and additional class counsel (Doc. 653) filed by proposed class representatives Stephen H. Taylor and Darrel J. Aubertine ("Movants").
The court previously certified two subclasses of Plaintiff dairy farmers (collectively, "Dairy Farmers Subclasses"), and appointed counsel for each subclass (collectively, "Subclass Counsel"):
1. All dairy farmers, whether individuals or entities, who produced and pooled raw Grade A milk in Order 1 during any time from January 1, 2002 to the present, who are members of DFA or otherwise sell milk through DMS ("DFA/DMS Subclass"); and
2. All dairy farmers, whether individuals or entities, who produced and pooled raw Grade A milk in Order 1 during any time from January 1, 2002 to the present, who are not members of DFA and do not otherwise sell milk through DMS ("non-DFA/DMS Subclass").
(Doc. 435 at 3-4.) Jonathan and Claudia Haar and Richard Swantak currently serve as Subclass Representatives for the DFA/DMS Subclass and Alice and Laurance Allen and Ralph Sitts and Garret Sitts currently serve as Subclass Representatives for the non-DFA/DMS Subclass (collectively, "Subclass Representatives").
Movants seek to intervene and to be joined as additional Subclass Representatives for the non-DFA/DMS Subclass, and their attorneys, Daniel Smith, Esq., and Richard T. Cassidy, Esq., seek to be added as Subclass Counsel for that Subclass. They do not seek to replace existing Subclass Representatives or existing Subclass Counsel.
The non-DFA/DMS Subclass opposes the motions (Docs. 663 & 672) and relies on the declaration of Subclass Representative Alice Allen (Doc. 672-1) as evidence that intervention is not necessary. Non-DFA/DMS Subclass Representatives Ralph Sitts and Garret Sitts submitted their own oppositions filed June 19, 2015 (Doc. 665), and June 24, 2015. (Doc. 666.)
The DFA/DMS Subclass takes no position on the motions, although Subclass Representatives for the DFA/DMS Subclass, Jonathan and Claudia Haar and Richard Swantak, have filed oppositions to the pending motions without doing so through Subclass Counsel. (Docs. 665, 666, & 671.) Defendants Dairy Farmers of America, Inc. ("DFA") and Dairy Marketing Services, LLC ("DMS") also take no position on the motions.
I. Procedural Background.
This class action arises out of Plaintiffs' allegations that Defendants and their alleged co-conspirators engaged in a wide-ranging conspiracy at the processor and cooperative levels to control the supply of raw Grade A milk in Order 1, which had the effect of suppressing certain premiums paid to dairy farmers for their milk. (Doc. 117.)
Shortly prior to the trial scheduled to commence on July 7, 2014 through August 22, 2014, Subclass Counsel notified the court that a settlement had been reached with Defendants. Thereafter, Subclass Counsel sought preliminary approval of this settlement (the "Initial Settlement"). See Allen v. Dairy Farmers of Am., Inc., 2014 WL 3900324, at *6 (D. Vt. July 9, 2014). After granting a renewed motion for preliminary approval, see Allen v. Dairy Farmers of Am., Inc., 2014 WL 6682436, at *5, *7 (D. Vt. Nov. 25, 2014), the court held a Fairness Hearing on January 29, 2015, at which time all Subclass Representatives (the "opposing Subclass Representatives"), with the exception of Alice and Laurance Allen, opposed the Initial Settlement. The court subsequently denied without prejudice the motion for final approval. See Allen v. Dairy Farmers of Am., Inc., 2015 WL 1517400, at *9 (D. Vt. Mar. 31, 2015) (concluding that the court could neither find the Initial Settlement procedurally nor substantively fair in light of the objections raised by opposing Subclass Representatives that it provided only "modest" monetary recovery and lacked "meaningful injunctive relief").
On March 11, 2015, opposing Subclass Representatives filed a motion to remove Subclass Counsel, which Subclass Counsel opposed. After two days of evidentiary hearings, the court denied the motion to remove Subclass Counsel on June 30, 2015. (Doc. 667.) In denying the motion, the court found no evidence that Subclass Counsel had engaged in actual misconduct or collusion and further found that all Subclass Representatives and their Subclass Counsel had acted in the best interests of the class consistent with their respective fiduciary duties. See Maywalt v. Parker & Parsley Petroleum Co., 67 F.3d 1072, 1077 (2d Cir. 1995) (directing that both "class representatives and class counsel have responsibilities to absent members of the class"). The hearings were nonetheless contentious, the participants appeared entrenched in their positions and mutually distrustful, and it appeared that no meaningful communications to either move the case towards trial or resolve it had occurred in several months. In finding that the drastic remedy of removal was not warranted, the court nonetheless noted that "the disagreements between [opposing] Subclass Representatives and Subclass Counsel may have been avoidable" and that "the relationship between [opposing] Subclass Representatives and Subclass Counsel is not ideal[.]" (Doc. 667 at 9.)
While the motion to remove Subclass Counsel was pending, on May 29, 2015, Movants filed their motion to join this action as additional Subclass Representatives. (Doc. 653.) On July 1, 2015, they filed the motion to intervene. (Doc. 669.) Movants' pending motion to ...