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Allen v. Dairy Farmers of America, Inc.

United States District Court, D. Vermont

July 26, 2017

ALICE H. ALLEN, et al., Plaintiffs,
v.
DAIRY FARMERS OF AMERICA, INC. and DAIRY MARKETING SERVICES, LLC, Defendants.

          ENTRY ORDER DENYING THE MOTION TO EXTEND THE PERIOD TO OPT OUT OF THE DECEMBER 2015 SETTLEMENT (DOC. 2132)

          Christina Reiss, Chief Judge United States District Court

         On June 7, 2016, the court approved a settlement (the "December 2015 Settlement") between Defendants Dairy Farmers of America, Inc. ("DFA") and Dairy Marketing Services, LLC ("DMS") and the DFA/DMS and non-DFA/DMS subclasses (collectively, "Plaintiffs" or the "Dairy Farmers Class"). Pending before the court is the March 1, 2017 motion filed by Andrew and Matthew Toms (the "Toms") (Doc. 2132) to extend the time period to opt out of the December 2015 Settlement. Defendants oppose the motion, arguing that it is both untimely and made without justification. The Toms did not file a reply in support of their motion. The court took the pending motion under advisement on March 29, 2017.

         The Toms are represented by Gary L. Franklin, Esq. Defendants are represented by Ian P. Carleton, Esq., Margaret M. Zwisler, Esq., Jennifer L. Giordano, Esq., Alfred C. Pfeiffer, Jr., Esq., and W. Todd Miller, Esq.

         I. Factual and Procedural Background.

         In this lawsuit, Plaintiffs alleged that Defendants[1] violated the Sherman Act, 15 U.S.C. §§ 1-2 by conspiring to control the supply of raw Grade A milk in Federal Milk Market Order 1, which had the effect of suppressing certain premiums paid to dairy farmers for their milk.

         The court certified the Dairy Farmers Class, which consisted of all dairy farmers, whether individuals, entities, or members of cooperatives, who produced and pooled raw Grade A milk in Order 1 during any time after January 1, 2002. The Dairy Farmers Class is comprised of two certified Subclasses:

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 [S]ubclass"); 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 [S]ubclass").

(Doc. 435 at 3-4.)

         A. The December 2015 Settlement.

         After the court granted in part and denied in part Defendants' motion for summary judgment, this case was set for trial. Defendants and Plaintiffs thereafter entered into a series of settlement agreements which the court rejected until the parties entered into the December 2015 Settlement, which included an opt-out provision. On February 8, 2016, the court preliminarily approved the December 2015 Settlement, ordering that:

11. Any member of the Subclass who did not previously opt out of a Subclass but wishes to be excluded from the 2015 Settlement Agreement, may opt out of it by submitting a letter expressing such intent to the Claims Administrator at least twenty-one (21) days prior to the Fairness Hearing. This letter must be entitled "Opt-Out Letter." It must include the date, the caption of this case, as well as the Subclass member's name, address, and signature. It must also clearly state that the Subclass member is opting out of the 2015 Settlement Agreement, with language such as, "I am opting out of the 2015 Settlement Agreement."

(Doc. 718 at 8-9, ¶ 11.)

         These directions were also reflected in a Notice of Proposed Settlement (the "Notice") that was subsequently disseminated pursuant to a notice program approved by the ...


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