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849061.5
UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS
IN RE: POTASH ANTITRUST LITIGATION (II)
MDL Docket No. 1996
Case No. 08-cv-6910 (Consolidated with 08-cv-5635)
Date: December 11, 2012 Time: 10:00 a.m. CTRM: 2141
Judge R. Castillo
THIS DOCUMENT APPLIES TO:
DIRECT PURCHASER ACTIONS
DIRECT PURCHASER PLAINTIFFS’ MOTION TO PRELIMINARILY APPROVE SETTLEMENT WITH
DEFENDANTS JSC URALKALI AND JSC SILVINIT AND TO CONDITIONALLY CERTIFY SETTLEMENT CLASS AND APPROVE CLASS NOTICE PROGRAM
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849061.5 i
TABLE OF CONTENTS
Page
I. INTRODUCTION ........................................................................................................................1
II. PROCEDURAL HISTORY ........................................................................................................2
A. THE LITIGATION TO DATE ................................................................................2
B. THE URALKALI AND SILVINIT SETTLEMENT AGREEMENT ....................4
III. ARGUMENT .............................................................................................................................5
A. CLASS ACTION SETTLEMENT PROCEDURE. ................................................5
B. THE PROPOSED SETTLEMENT IS WITHIN THE RANGE OF
POSSIBLE APPROVAL AND SHOULD BE PRELIMINARILY
APPROVED UNDER FED. R. CIV. P. 23(e). ........................................................6
C. THE COURT SHOULD PRELIMINARILY CERTIFY THE
SETTLEMENT CLASS. .......................................................................................10
1. The Requirements of Rule 23(a) Are Satisfied. .........................................10
a. The Class Is So Numerous That Joinder Is Impracticable. ............10
b. vcThere Are Questions of Law and Fact Common to the
Class. ..............................................................................................11
c. Plaintiffs' Claims Are Typical of the Claims of the Class. ............12
d. Plaintiffs Will Fairly and Adequately Represent the
Interests of the Class. .....................................................................13
2. The Proposed Settlement Class Satisfies Rule 23(b)(3). ...........................14
a. Common Questions of Law and Fact Predominate Over
Individual Questions. .....................................................................15
b. A Class is Superior To Any Other Method of Adjudicating
This Case. .......................................................................................16
D. INTERIM CO-LEAD CLASS COUNSEL SHOULD BE APPOINTED
AS SETTLEMENT CLASS COUNSEL. ..............................................................16
E. PLAINTIFFS’ PROPOSED CLASS NOTICE PROGRAM MEETS THE
REQUIREMENTS OF RULE 23(e). .....................................................................17
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849061.5 ii
F. THE COURT SHOULD SCHEDULE A FINAL APPROVAL
HEARING..............................................................................................................19
IV. CONCLUSION........................................................................................................................21
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849061.5 iii
TABLE OF AUTHORITIES
Page(s)
CASES
Am. Int'l Grp., Inc. v. ACE INA Holdings, Inc.,
Nos. 07 C 2898, 09 C 2026, 2011 WL 3290302 (N.D. Ill. July 26, 2011) ............................6, 9
Amchem Prods., Inc. v. Windsor,
521 U.S. 591 (1997) ...............................................................................................10, 15, 16, 18
Bell Atlantic Corp v. Twombly,
550 U.S. 544 (2007) ...................................................................................................................3
Burlington Indus., Inc. v Milliken & Co.,
690 F.2d 380 (4th Cir. 1982) .....................................................................................................8
City of Greenville v. Syngenta Crop Prot.,
No. 3:10-cv-188, 2012 WL 1948153 (S.D. Ill. May 30, 2012) ...................................17, 18, 19
E.E.O.C. v. Hiram Walker & Sons, Inc.,
768 F.2d 884 (7th Cir. 1985) .....................................................................................................6
Eggleston v. Chicago Journeymen Plumbers' Local Union No. 130,
657 F.2d 890 (7th Cir. 1981) ...................................................................................................13
Hubler Chevrolet, Inc. v. Gen. Motors Corp.,
193 F.R.D. 574 (S.D. Ind. 2000) ..............................................................................................11
Hughes v. Baird & Warner, Inc.,
No. 76 C 3929, 1980 WL 1894 (N.D. Ill. Aug. 20, 1980) .......................................................15
In re AT&T Mobility Wireless Data Servs. Sales Litig.,
270 F.R.D. 330 (N.D. Ill. 2010) .............................................................................................6, 8
In re Baldwin-United Corp.,
105 F.R.D. 475 (S.D.N.Y. 1984) .............................................................................................10
In re Bromine Antitrust Litig.,
203 F.R.D. 403 (S.D. Ind. 2001) ..........................................................................................6, 16
In re Carbon Black Antitrust Litig.,
No. CIV.A.03-10191-DPW, MDL No. 1543, 2005 WL 102966 (D. Mass. Jan. 18,
2005) ..................................................................................................................................15, 16
In re Corrugated Container Antitrust Litig.,
643 F.2d 195 (5th Cir. 1981) ...................................................................................................14
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849061.5 iv
In re Corrugated Container Antitrust Litig.,
MDL 310, 1981 WL 2093 (S.D. Tex. June 22, 1981) ...........................................................7, 9
In re Drexel Burnham Lambert Grp., Inc.,
960 F.2d 285 (2d Cir. 1992).....................................................................................................13
In re Foundry Resins Antitrust Litig.,
242 F.R.D. 393 (S.D. Ohio 2007) ......................................................................................15, 16
In re Linerboard Antitrust Litig.,
292 F. Supp. 2d 631 (E.D. Pa. 2003) .....................................................................................7, 8
In re Mercedes-Benz Antitrust Litig.,
213 F.R.D. 180 (D.N.J. 2003) ..................................................................................................13
In re Packaged Ice Antitrust Litig.,
No. 08-MD-01952, 2011 WL 717519 (E.D. Mich. Feb. 22, 2011) .....................................7, 17
In re Potash Antitrust Litig.,
667 F. Supp. 2d 907 (N.D. Ill. 2009) ...................................................................................3, 14
In re Pressure Sensitive Labelstock Antitrust Litig.,
584 F. Supp. 2d 697 (M.D. Pa. 2008) ........................................................................................7
In re Ready-Mixed Concrete Antitrust Litig.,
261 F.R.D. 154 (S.D. Ind. 2009) ..................................................................................11, 12, 13
Isby v. Bayh,
75 F.3d 1191 (7th Cir.1996) ..................................................................................................6, 8
Johns v. DeLeonardis,
145 F.R.D. 480 (N.D. Ill. 1992) ...............................................................................................11
Keele v. Wexler,
149 F.3d 589 (7th Cir. 1998) ...................................................................................................12
Levitan v. McCoy,
No. 00-C-5096, 2003 WL 1720047 (N.D. Ill. Mar. 31, 2003) ................................................10
Minn-Chem, Inc. v. Agrium, Inc.,
657 F.3d 650 (7th Cir. 2011) .....................................................................................................3
Minn-Chem, Inc. v. Agrium, Inc.,
683 F.3d 845 (7th
Cir. 2012) ..................................................................................................2, 4
Ruiz v. Stewart Assoc., Inc.,
171 F.R.D. 238 (N.D. Ill. 1997) ...............................................................................................12
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849061.5 v
Scholes v. Stone, McGuire & Benjamin,
143 F.R.D. 181 (N.D. Ill. 1992) ...............................................................................................10
Stoller v. Baldwin-United Corp.,
650 F. Supp. 341 (S.D. Ohio 1986) .........................................................................................18
Wahl v. Midland Credit Management, Inc.,
243 F.R.D. 291 (N.D. Ill. 2007) ...................................................................................13, 14, 15
Weseley v. Spear, Leeds & Kellogg,
711 F. Supp. 713 (E.D.N.Y. 1989) ............................................................................................8
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849061.5 1
Direct Purchaser Plaintiffs ("DPPs") hereby move this Court for entry of an order (1)
preliminarily approving the settlement reached with defendants JSC Uralkali and JSC Silvinit;
(2) certifying a settlement class; (3) appointing Interim Co-Lead Class Counsel as Class Counsel;
(4) appointing the named Plaintiffs as Class Representatives; (5) directing the distribution of
notice of the settlement to the Settlement Class to provide Settlement Class Members with the
opportunity to opt out and to object to the proposed settlement; and (6) setting a schedule for
final approval of the proposed settlement.
I. INTRODUCTION
Direct Purchaser Plaintiffs (“DPPs”) have reached an initial “icebreaker” settlement in
this class action with Defendants JSC Uralkali (“Uralkali”) and the company formerly known as
JSC Silvinit (“Silvinit) (collectively the “Settling Defendants”).1 In return for the release of
claims by DPPs and the proposed Settlement Class against Settling Defendants and their
affiliates, including Defendants JSC International Potash Company (“IPC”), JSC Belarusian
Potash Company and BPC Chicago, LLC (“BPC”), Defendant Uralkali has agreed to pay $10
million for the benefit of the Class. The Settling Defendants have also agreed to cooperate with
DPPs by providing proffers of facts, documents, and witness interviews and testimony regarding
the allegations in DPPs’ Complaint as specified in the Settlement Agreement.
DPPs’ Co-Lead Counsel respectfully submit that this substantial cash payment and
Settling Defendants’ cooperation provide a material benefit to the proposed Settlement Class,
and represents an excellent result for the class as an initial settlement. Moreover, this agreement
will obviate substantial issues and obstacles in discovery and judgment collection against the
Settling Defendants.
1 The Settlement Agreement dated Sept. 20, 2012, is attached as Exhibit A to Declaration of Bruce L.
Simon In Support of Plaintiffs' Motion for Preliminary Approval of Settlement With Defendants JSC
Uralkali and JSC Silvinit and to Conditionally Certify Settlement Class and Approve Class Notice
Program (“Simon Decl.”), filed herewith.
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This agreement was reached only after extensive arms-length negotiations. These
negotiations occurred after DPPs’ Class Counsel researched, analyzed and evaluated the
numerous factual and legal issues involved in this case. Even though merits discovery has only
recently commenced, Class Counsel have litigated the case for four years, including significant
prefiling investigation and conducting pre-trial proceedings with Defendants as well as an
extensive amount of appellate practice. Simon Decl. ¶ 10. See Minn-Chem, Inc. v. Agrium, Inc.,
683 F.3d 845 (7th
Cir. 2012).
As established below, the proposed settlement is well within the range of reasonableness,
and the proposed Settlement Class meets the requirements of Fed. R. Civ. P. 23. Accordingly,
DPPs respectfully request that the Court (1) preliminarily approve the Settlement Agreement, (2)
certify a Settlement Class, (3) appoint Interim Co-Lead Class Counsel as Class Counsel; (4)
appoint the named Plaintiffs as Class Representatives; (5) direct the distribution of notice of the
settlement to the Settlement Class to provide Class Members with the opportunity to opt out and
to object to the settlement; and, (6) set a schedule for final approval of the settlement.
II. PROCEDURAL HISTORY
A. THE LITIGATION TO DATE
DPPs' Complaint alleges that Defendants and others conspired to restrict supply and fix
prices of potash sold to U.S. purchasers in violation of Section One of the Sherman Antitrust
Act, 15 U.S.C. § 1.2
The first of these coordinated cases was filed on September 11, 2008. Simon Decl. ¶3.
On December 2, 2008, the Judicial Panel on Multidistrict Litigation transferred related actions to
2 Direct Purchaser Amended Consolidated Class Action Complaint (ECF No. 142), ¶¶159-65.
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this Court.3 On April 23, 2009, this Court granted Defendants’ motion (ECF Nos. 26, 27) to stay
discovery until further order,4 and granted Plaintiffs’ motion (ECF No. 41) for alternative service
of process on those Defendants located in the Russian Federation (ECF No. 64). Id.. Defendants
thereupon moved to dismiss Plaintiffs’ Complaint under Fed. R. Civ. P. 12 (ECF Nos. 104, 107,
127, 135). Id.
After extensive briefing, on November 4, 2009, the Court denied Defendants’ motions to
dismiss DPPs’ Complaint, including the Russian Defendants’5
motions to dismiss, and set a
deadline for the completion of the initial phase of discovery. ECF Nos. 201-02.6 Id., ¶4. In
March 2010, Defendants obtained not only a further stay of discovery but an interlocutory appeal
(ECF No. 294) of this Court’s Order upholding DPPs’ Complaint. Defendants appealed both this
Court’s determination that DPPs’ allegations were sufficient under Bell Atlantic Corp v.
Twombly, 550 U.S. 544 (2007), and its determination that the Foreign Trade Antitrust
Improvements Act of 1982 (“FTAIA”), 15 U.S.C. § 6a, did not bar DPPs’ claims. Id. ¶5. A year
later, in March 2011, this Court lifted the stay of discovery (ECF No. 329), but on Defendants’
emergency motion, the Court of Appeals further stayed discovery pending resolution of the
appeal (ECF No. 331). Id., ¶6.
Finally, more than two and one-half years after this Court upheld DPPs’ Complaint, and
following a reversal by a panel of the Court of Appeals7 and DPPs’ petition for rehearing en
3 Transfer Order, MDL No. 1996 (JPML Dec. 2, 2008).
4 Plaintiffs have consistently opposed discovery stays. E.g., Direct And Indirect Purchaser
Plaintiffs’ Memorandum In Opposition To Defendants’ Motion To Stay Discovery (March 10,
2009) (ECF No. 39).
5 The company formerly known as JSC Silvinit, JSC International Potash Company, and JSC
Uralkali, (collectively, the “Russian Defendants”).
6 In re Potash Antitrust Litig., 667 F. Supp. 2d 907, 937 n.26 (N.D. Ill. 2009).
7 Minn-Chem, Inc. v. Agrium, Inc., 657 F.3d 650 (7th Cir. 2011).
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849061.5 4
banc, the Court of Appeals en banc vacated the panel decision and affirmed this Court.8 This
Court promptly ordered discovery to proceed, and set a settlement conference with all parties.
ECF No. 390. Discovery is now underway.
B. THE URALKALI AND SILVINIT SETTLEMENT AGREEMENT
Initial settlement discussions between counsel for DPPs and the Settling Defendants9
began several months ago. After extensive, arms-length and hard-fought negotiations, Settling
Defendants and DPPs’ Class Counsel reached an agreement. Simon Dec., Ex. A (Settlement
Agreement). Defendant Uralkali agreed to pay $10 million for the benefit of the DPP Settlement
Class into an interest-bearing escrow account 45 days after execution of the Settlement
Agreement. The settlement agreement provides that a maximum of $250,000 may be used for
notice and claims administration expenses after preliminary approval. Id. ¶¶6, 15, 18.
Settling Defendants also agreed to cooperate with DPPs’ Class Counsel in their ongoing
prosecution of the case against the non-settling Defendants. Settling Defendants’ counsel will
provide attorney’s proffers of facts known to them, and produce documents regarding their sales,
pricing, production, and their meetings, communications, and cooperation with co-conspirators
as specified in the Settlement Agreement. Settling Defendants will make up to nine witnesses
available for interviews, video depositions, and testimony. Id. ¶23. In exchange, DPPs will
release all claims which were or could have been brought in this action against the Settling
Defendants, Uralkali and Silvinit, as well as their affiliates, including Defendants JSC
8 Minn-Chem, Inc. v. Agrium, Inc., 683 F.3d 845 (7th Cir. 2012).
9 JSC Silvinit was, prior to its merger with JSC Uralkali, a Russian company headquartered in
Solikamsk, Russia, that sells potash around the world. JSC Uralkali is a Russian firm
headquartered in Moscow, and half owner of Belarusian Potash Company, RUE PA
Belaruskali’s distributor. Complaint ¶¶ 24, 26, 29.
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International Potash Company (“IPC”), JSC Belarusian Potash Company, BPC Chicago, LLC,
and BPC’s affiliate, RUE PA Belaruskali. Id. ¶3, 13, 14.
III. ARGUMENT
A. CLASS ACTION SETTLEMENT PROCEDURE.
A class action may not be dismissed, compromised, or settled without the Court’s
approval. Judicial proceedings under Fed. R. Civ. P. 23 have led to a defined procedure and
specific criteria for approval of class action settlements. Approval of a class settlement under
Rule 23(e) consists of three steps:
1. Certification of a settlement class and preliminary approval of the proposed
settlement;
2. Dissemination of notice of the settlement to all affected class members; and,
3. A formal fairness hearing, also called the final approval hearing, at which class
members may be heard regarding the settlement, and at which counsel may introduce evidence
and present argument concerning the fairness, adequacy, and reasonableness of the settlement.
This procedure safeguards class members' procedural due process rights and enables the
Court to fulfill its role as the guardian of class interests. See 4 Newberg on Class Actions §§
11.22 et seq. (4th
ed. 2002) ("Newberg") (describing class action settlement procedure).
By way of this motion, Plaintiffs ask the Court to take the first step in the settlement
process and certify a settlement class and preliminarily approve the proposed Settlement.
Plaintiffs further request that the Court appoint Interim Co-Lead Class Counsel as Class Counsel
and the named Plaintiffs as Class Representatives. Plaintiffs also seek the Court’s approval of
their proposed class notice program so that the second step, notice to all affected class members,
may be carried out.
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B. THE PROPOSED SETTLEMENT IS WITHIN THE RANGE OF POSSIBLE APPROVAL AND SHOULD BE PRELIMINARILY APPROVED UNDER FED. R. CIV. P. 23(e).
“Federal courts naturally favor the settlement of class action litigation.” Isby v. Bayh, 75
F.3d 1191, 1196 (7th Cir.1996). The first step in approval is for the court to determine whether
the proposed settlement is within the range of possible approval sufficient to justify sending
notice to the class of the proposed settlement and holding a final approval hearing. See In re
AT&T Mobility Wireless Data Servs. Sales Litig., 270 F.R.D. 330, 346 (N.D. Ill. 2010). If so, a
proposed settlement may be finally approved by the Court if it is determined to be lawful, fair,
reasonable and adequate. Isby, 75 F.3d at 1196; E.E.O.C. v. Hiram Walker & Sons, Inc., 768
F.2d 884, 889 (7th Cir. 1985). At the preliminary approval stage, however, “the court’s task is
merely to determine whether the proposed settlement is within the range of possible approval,
not to conduct a full-fledged inquiry into whether the settlement meets Rule 23(e)’s standards.”
Am. Int'l Grp., Inc. v. ACE INA Holdings, Inc., Nos. 07 C 2898, 09 C 2026, 2011 WL 3290302,
*6 (N.D. Ill. July 26, 2011) (quotation omitted); see also In re Bromine Antitrust Litig., 203
F.R.D. 403, 416 (S.D. Ind. 2001).
Five factors aid courts in analyzing preliminary approval:
(1) the strength of plaintiffs' case compared to the terms of the proposed settlement;
(2) the likely complexity, length and expense of continued litigation;
(3) the amount of opposition to settlement among [a]ffected parties;
(4) the opinion of competent counsel; and (5) the stage of the proceedings and the amount of discovery
completed.
AT&T, 270 F.R.D. at 346; Am. Int'l Group, 2011 WL 3290302, at *5; see Isby, 75 F.3d at 1198–
99 (factors to aid court’s analysis).
In evaluating settlements, courts give extra value to an initial “icebreaker” settlement.
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849061.5 7
An “ice-breaker” settlement “is the first settlement in the litigation – and should increase the
likelihood of future settlements. An early settlement with one of many defendants can ‘break the
ice’ and bring other defendants to the point of serious negotiations.” In re Linerboard Antitrust
Litig., 292 F. Supp. 2d 631, 643 (E.D. Pa. 2003) (citation omitted); see In re Packaged Ice
Antitrust Litig., No. 08-MD-01952, 2011 WL 717519, at *10 (E.D. Mich. Feb. 22, 2011) (“[a]lso
of significant value is the fact that the Settlement Agreement with Home City can serve as an
‘ice-breaker’ settlement”); In re Corrugated Container Antitrust Litig., MDL 310, 1981 WL
2093, at *19 (S.D. Tex. June 22, 1981) (settlement “was the first one negotiated and, in addition
to the benefits already detailed, broke the ice and brought other defendants to the point of serious
negotiations”). Accordingly, the first settlement in a case with multiple defendants is important.
Early ice-breaker settlements in multi-defendant antitrust cases also add value for the
class by strategically building higher recoveries for later settlements. An earlier opinion
explained, “this strategy was designed to achieve a maximum aggregate recovery for the class
and the fact that the later settlements were at considerably higher rates tends to show that the
strategy was successful.” Corrugated Container, 1981 WL 2093, at *23. That court also noted,
“the coercive impact of such a strategy, combined with the law on joint and several liability … is
increasingly great as one settlement succeeds another.” Id. at *23. A settling defendant’s
cooperation adds recognized value to a settlement. E.g. Packaged Ice, 2011 WL 717519, at *10
(cooperation “has already been beneficial to the Plaintiffs in their continued prosecution of their
claims against the non-settling Defendants”); In re Pressure Sensitive Labelstock Antitrust Litig.,
584 F. Supp. 2d 697, 702 (M.D. Pa. 2008) (“significant cash payout, coupled with Settling
Defendants' extensive proffer of facts and information represents an immediate and valuable
benefit to the Class that will aid in the ongoing litigation against the non-settling Defendants.");
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849061.5 8
Linerboard, 292 F. Supp. 2d at 643 (cooperation “a substantial benefit to the classes” strongly
supporting settlement approval).
The factors mentioned in Isby and AT&T support preliminarily approving this Settlement.
First, this settlement provides $10 million for the Settlement Class, a substantial recovery in view
of the challenges of litigating an international price-fixing conspiracy against Settling
Defendants and their affiliates who are essentially located entirely in the former Soviet Union.
This settlement’s cooperation signals to other Defendants they should reconsider their previous
settlement positions. Settling Defendants’ sales to the Class are not removed from the case, thus
the imposition of joint and several liability on co-conspirators under the Sherman Act leaves the
non-settling Defendants liable for three times the damages caused by the entire conspiracy.10
Nothing in this Settlement Agreement alters that liability. This settlement agreement's
cooperation provision strengthens DPPs' case against the remaining Defendants, providing a
substantial benefit that strongly supports approval.
Second, continued litigation with the Settling Defendants and their affiliates “‘would
require the resolution of many difficult and complex issues,’ would ‘entail considerable
additional expense,’ and would ‘likely involve weeks, perhaps months, of trial time.’” Isby, 75
F.3d at 1199 (quoting Taifa v. Bayh, 846 F. Supp. 723, 727 (N.D. Ind. 1994)). Antitrust class
actions are “notoriously complex, protracted, and bitterly fought,” Weseley v. Spear, Leeds &
Kellogg, 711 F. Supp. 713, 719 (E.D.N.Y. 1989), and continuing this litigation against these
Settling Defendants in particular could pose a long and expensive battle for the Settlement Class.
Russia has ignored the Hague Convention for Service Abroad, which would complicate and
10
See Burlington Indus., Inc. v Milliken & Co., 690 F.2d 380, 391 (4th Cir. 1982) (joint and
several liability).
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849061.5 9
multiply discovery.11
Moreover, collecting any resulting judgment, including locating and
attaching available assets in Russia and Belarus, likely would pose additional challenges and
delays.
Third, Class Counsel, experienced antitrust class action lawyers, believe this is a strong
initial settlement that provides substantial benefit to the Settlement Class, and recommend its
approval. Simon Decl., ¶14. See Am. Int'l Grp., 2011 WL 3290302, at *8 (court “entitled to rely
heavily on the opinion of competent counsel”). There are no known objections at this time.12
Fourth, the settlement is a result of arms-length negotiations after ongoing litigation,
involving numerous negotiations between Class Counsel and counsel for the Settling Defendants.
Simon Decl., ¶11. These conversations occurred after Class Counsel researched, analyzed, and
evaluated numerous factual and legal issues, conducted contentious pre-trial proceedings with
Defendants, defeated Defendants’ extensive motions to dismiss DPPs’ Complaint, and won a
unanimous en banc appellate decision upholding their Complaint. Id.
This icebreaker settlement provides $10 million to the Settlement Class, plus cooperation
that will strengthen Direct Purchaser Plaintiffs’ case as part of a strategy “designed to achieve a
maximum aggregate recovery for the class.” Corrugated Container, 1981 WL 2093, at *23. It
saves considerable expense, attorney and judicial time, and avoids particular problems of
discovery and collection from Russian Defendants. Experienced Class Counsel recommend the
settlement. Consequently, the proposed settlement is “at least sufficiently fair, reasonable and
11
The fact that Russia ignores the Hague Convention for Service Abroad was briefed
extensively in Plaintiffs’ Motion To Allow Alternative Service on the Russian Defendants (ECF
No. 41), which the Court granted in April 2009 (ECF No. 64).
12 If the Settlement is preliminarily approved, affected class members will receive notice of the
Settlement and will have an opportunity to appear and object, if they choose, prior to final
approval. See Section III E infra.
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849061.5 10
adequate to justify notice to those affected and an opportunity to be heard.” In re Baldwin-
United Corp., 105 F.R.D. 475, 482 (S.D.N.Y. 1984).
C. THE COURT SHOULD PRELIMINARILY CERTIFY THE SETTLEMENT CLASS.
A court may certify a class action for settlement purposes. See, e.g., Amchem Prods., Inc.
v. Windsor, 521 U.S. 591, 619–20 (1997). A settlement class must meet the certification
requirements under Rule 23(a) and one or more of the requirements of 23(b). As shown below,
the proposed Settlement Class meets these requirements.
Direct Purchaser Plaintiffs seek certification of the following Settlement Class consisting
of:
All persons and entities who purchased potash in the United States directly from one or more of the Settling Defendants, or their affiliates BPC and IPC, or from Non-Settling Defendants between July 1, 2003 and September 20, 2012. Excluded from the Class are defendants, their parent companies, subsidiaries and affiliates, any co-conspirators, all governmental entities, and any judges or justices assigned to hear any aspect of this action.
Although the proposed Class Period in the Complaint is defined as from July 1, 2003 to the
present (see Complaint ¶32), the proposed Settlement Class definition includes that same period
except that the end date is the effective date of the proposed settlement, i.e., September 20, 2012.
Simon Decl., ¶ 17.
1. The Requirements of Rule 23(a) Are Satisfied.
a. The Class Is So Numerous That Joinder Is Impracticable.
A class must be so numerous as to make joinder of all parties “impracticable.” Fed. R.
Civ. P. 23(a)(1). Joinder is impracticable if it is extremely difficult or inconvenient. See Levitan
v. McCoy, No. 00-C-5096, 2003 WL 1720047, *3 (N.D. Ill. Mar. 31, 2003). Courts consider the
number of class members and “common sense assumptions” to determine whether a proposed
class satisfies the numerosity element. Scholes v. Stone, McGuire & Benjamin, 143 F.R.D. 181,
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849061.5 11
184 (N.D. Ill. 1992) (internal quotation omitted) (certifying class between 129 and 300
members); see also Hubler Chevrolet, Inc. v. Gen. Motors Corp., 193 F.R.D. 574, 577 (S.D. Ind.
2000) (“While there is no magic number held to satisfy this requirement, classes of forty or more
members have generally been found to be sufficiently numerous.”). This Settlement Class
includes all entities that purchased potash from any Defendant in the United States during the
class period. While the precise number remains in Defendants’ exclusive possession for now,
Class Counsel reasonably believe that there are thousands of Settlement Class members, and that
they are geographically dispersed across the United States. Simon Decl., ¶17. Since their
numbers and dispersion make joining them all impracticable, the numerosity requirement is
satisfied.
b. vcThere Are Questions of Law and Fact Common to the Class.
Commonality requires a legal or factual question common to the class. Fed. R. Civ. P.
23(a)(2). It does not require all questions of law or fact to be identical “but merely that the class
claims arise out of the same legal or remedial theory.” See Johns v. DeLeonardis, 145 F.R.D.
480, 483 (N.D. Ill. 1992). A “single course of conduct that results in injury to the class as a
whole” usually suffices. Id. Commonality is easily met in antitrust cases, since plaintiffs “‘have
a shared interest in attempting to prove that Defendants engaged in a conspiracy to fix, raise, and
maintain the prices’ of the product.” In re Ready-Mixed Concrete Antitrust Litig., 261 F.R.D.
154, 167 (S.D. Ind. 2009) (quoting In re Foundry Resins Antitrust Litig., 242 F.R.D. 393, 405
(S.D. Ohio 2007)).
DPPs’ core allegations are that Defendants formed and operated an illegal cartel to
restrict supply and raise prices for potash. Settling Defendants deny these allegations and deny
liability generally. Since all of the Direct Purchaser Settlement Class Members’ Sherman Act
claims arise from the same legal theory based on these same allegations, they have “a shared
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interest in attempting to prove” Defendants’ alleged conspiracy to fix prices. In addition, DPPs
and the Settlement Class share other legal and factual questions, including but not limited to:
each Defendant’s role in the cartel;
whether Defendants’ conduct violated Section 1 of the Sherman Act;
whether Defendants’ conduct inflated the price of potash sold in the United States
to supracompetitive levels;
whether Defendants shared non-public information, restricted potash output, or
committed other conduct to further the alleged conspiracy; and,
whether Defendant’s conduct injured DPPs and other Settlement Class members,
and if so, the appropriate class-wide damages.
Consequently, the Settlement Class satisfies Rule 23(a)(2)’s commonality requirement.
c. Plaintiffs' Claims Are Typical of the Claims of the Class.
Claims of the class representatives must be typical of all class members’ claims. Fed. R.
Civ. P. 23(a)(3). Typicality does not require the claims of class members and representatives to
be identical, only substantially similar. Ruiz v. Stewart Assoc., Inc., 171 F.R.D. 238, 242 (N.D.
Ill. 1997). A “plaintiff’s claim is typical if it arises from the same event or practice or course of
conduct that gives rise to the claims of other class members and his or her claims are based on
the same legal theory.” Keele v. Wexler, 149 F.3d 589, 595 (7th Cir. 1998) (quoting De La
Fuente v. Stokely-Van Camp, Inc., 713 F.2d 225, 232 (7th Cir. 1983)).
“Typicality in the antitrust context will be established by plaintiffs and all class members
alleging the same antitrust violations by the defendant.” Ready-Mixed Concrete, 261 F.R.D. at
168 (quoting Estate of Garrison v. Warner Brothers, No. CV95-8328, 1996 WL 407849, at *2
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(C.D. Cal. June 25, 1996)); In re Mercedes-Benz Antitrust Litig., 213 F.R.D. 180, 185 (D.N.J.
2003) (typicality found where all harmed by illegal price-fixing conspiracy).
DPPs here allege and must prove the same Sherman Act violations that absent Settlement
Class members would have to prove: the existence, operation, and effects of the conspiracy to
restrict output and fix, raise and maintain prices. DPPs assert the same legal claims on behalf of
themselves and the proposed class; namely, that they purchased potash directly at
supracompetitive prices as a result of the antitrust conspiracy between Defendants. Defendants'
alleged price-fixing scheme is the basis for the claims of every named Plaintiff and class
members who purchased potash directly from Defendants during the class period. Because the
named Plaintiffs’ claims arise out of the same alleged anticompetitive conduct, are based on the
same alleged theories, and will require the same kinds of evidence to prove those theories, Rule
23(a)(3)’s typicality requirement is satisfied.
d. Plaintiffs Will Fairly and Adequately Represent the Interests of the Class.
Representative parties must “fairly and adequately protect the interests of the class.” Fed.
R. Civ. P. 23(a)(4). Adequacy requires that class representatives retain adequate counsel and
have no conflicting interests with other class members. Ready-Mixed Concrete, 261 F.R.D. at
168; In re Drexel Burnham Lambert Grp., Inc., 960 F.2d 285, 291 (2d Cir. 1992) (to same
effect); Eggleston v. Chicago Journeymen Plumbers' Local Union No. 130, 657 F.2d 890, 896
(7th Cir. 1981) (“competent and experienced counsel able to conduct the litigation”); cf. Fed. R.
Civ. P. 23(g)(1)(A) (counsel appointment requirements). Some cases also inquire whether the
named plaintiff has a sufficient interest in the case “to ensure vigorous advocacy.” Wahl v.
Midland Credit Management, Inc., 243 F.R.D. 291, 298 (N.D. Ill. 2007) (quoting Sebo v.
Rubenstein, 188 F.R.D. 310, 316 (N.D. Ill. 1999)). When class representatives and members
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seek the common goal of the largest possible recovery for the class, their interests do not
conflict. In re Corrugated Container Antitrust Litig., 643 F.2d 195, 208 (5th Cir. 1981); see
Global Crossing Sec. & ERISA Litig., 225 F.R.D. 436, 453 (S.D.N.Y. 2004) (“There is no
conflict between the class representatives and the other class members. All share the common
goal of maximizing recovery.”).
The Settlement Class members’ interests are well protected by the named Plaintiffs and
Class Counsel are not aware of any interests that they have that are antagonistic to the interests
of the class. Simon Decl., ¶8. Settlement Class members share an aligned, overriding interest in
obtaining the largest possible dollar recovery from this case. The named Plaintiffs purchased
potash from one or more Defendant(s), and have an interest in pursuing these claims. Id. Class
Counsel are qualified, experienced, and thoroughly familiar with antitrust class action litigation.
See Minute Order, February 24, 2009 (ECF No. 34) (appointing Class Counsel); Motion Of All
Direct Purchaser Plaintiffs To Appoint Interim Co-Lead And Liaison Class Counsel (Feb. 9,
2009) (ECF No. 7). See also Simon Decl. ¶15. Class Counsel have successfully prosecuted
many antitrust actions, developed this case, have invested substantially in it, diligently pursued it
through appellate proceedings, and will continue to litigate the case vigorously. Id. Accordingly,
Rule 23(a)(4)’s requirements are satisfied.
2. The Proposed Settlement Class Satisfies Rule 23(b)(3).
In addition to the requirements of Rule 23(a), Plaintiffs here must show that (1)
“questions of law and fact common to the members of the class predominate over any questions
affecting only individual members[;]” and (2) that “a class action is superior to the other
available methods for the fair and efficient adjudication of the controversy.” Wahl, 243 F.R.D. at
299 (quoting Fed. R. Civ. P. 23(b) (3)). Both are true here.
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a. Common Questions of Law and Fact Predominate Over Individual Questions.
Common questions predominate when generalized evidence “proves or disproves an
element in the case on a simultaneous, class-wide basis, since such proof obviates the need to
examine each class member’s individualized position.” Foundry Resins, 242 F.R.D. at 408.
Predominance is shown when a business practice harms class members in a consistent way, aside
from individual questions. See Wahl, 243 F.R.D. at 299 (form letters supported predominance).
Antitrust claims naturally satisfy predominance. See Amchem Prods., 521 U.S. at 625
(“Predominance is a test readily met in certain cases alleging consumer or securities fraud or
violations of the antitrust laws.”). “As a general rule in price-fixing cases . . . courts have
consistently found that common issues regarding the existence and scope of the conspiracy
predominate over questions affecting only individual members.” Foundry Resin at 408; see In re
Carbon Black Antitrust Litig., No. CIV.A.03-10191-DPW, MDL No. 1543, 2005 WL 102966,
*15 (D. Mass. Jan. 18, 2005) (“the common question of the existence of a horizontal price-fixing
conspiracy has almost invariably been found to satisfy Rule 23(b)(3)”); Hughes v. Baird &
Warner, Inc., No. 76 C 3929, 1980 WL 1894, at *3 (N.D. Ill. Aug. 20, 1980) (“Clearly, the
existence of a conspiracy is the common issue in this case. That issue predominates over issues
affecting only individual sellers.”).
The existence, operation, and effects of this conspiracy to restrict output and fix, raise
and maintain prices are central issues in this case that call for proof common to DPPs and all
Settlement Class members. Furthermore, DPPs contend that the structural characteristics of the
potash industry facilitated the conspiracy itself and resulted in changes in potash pricing having a
common impact on all class members. These issues will be proven with evidence common to all
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class members. See Foundry Resin, 242 F.R.D. at 410. Therefore, this case satisfies the
predominance requirement.
b. A Class is Superior To Any Other Method of Adjudicating This Case.
Rule 23(b)(3) requires a “predominance” class action to be superior to other methods of
handling the case. Courts recognize that in antitrust cases, class actions regularly are less
complicated, time-consuming, and expensive than individual trials. Carbon Black, 2005 WL
102966, at *22 (“Antitrust class actions are expensive endeavors and joining forces with other
similarly situated plaintiffs is often the only way to effectuate a case.”). Further, the class action
approach saves judicial resources. Bromine, 203 F.R.D. at 416.
This case meets Rule 23(b)(3)’s superiority requirement. Here, a Settlement Class
member’s individual interest in prosecuting a separate claim is far outweighed by the efficiency
of the class mechanism. Thousands of entities purchased potash during the class period; thus,
settling these claims in the context of a class action conserves judicial and private resources and
hastens Settlement Class recovery. Numerous individual plaintiffs would encounter various
problems with discovery of and collection of any judgment in Russia from these Settling
Defendants. DPPs see no management difficulties in this settlement. Cf. Amchem, 521 U.S. at
620 (for settlement-class certification, court need not review trial management “for the proposal
is that there be no trial.”). The proposed Settlement Class is substantially superior to other
available methods for fair and efficient adjudication of the controversy with these Settling
Defendants.
D. INTERIM CO-LEAD CLASS COUNSEL SHOULD BE APPOINTED AS SETTLEMENT CLASS COUNSEL.
"An order certifying a class action . . . must also appoint class counsel under Rule 23(g)."
Fed. R. Civ. P. 23(c)(1)(B). In appointing class counsel, courts must consider the following
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factors: (i) the work counsel has done in identifying or investigating potential claims in the
action; (ii) counsel's experience in handling class actions, other complex litigation, and the types
of claims asserted in the action, (iii) counsel's knowledge of the applicable law; and (iv) the
resources that counsel will commit to representing the class. Fed. R. Civ. P. 23(g)(1)(A).
The work done by Interim Co-Lead Counsel since their appointment provides a
substantial basis for the Court to find that they are well qualified to serve as class counsel.
Simon Decl., ¶¶3-7. Accordingly, Interim Co-Lead Counsel should be appointed as class
counsel for purposes of the settlement.
E. PLAINTIFFS’ PROPOSED CLASS NOTICE PROGRAM MEETS THE REQUIREMENTS OF RULE 23(e).
Rule 23(e)(1) states that "[t]he court must direct notice in a reasonable manner to all class
members who would be bound by a proposed settlement, voluntary dismissal or compromise."
Notice of a proposed settlement must inform class members of the following: (1) the nature of
the pending litigation; (2) the general terms of the proposed settlement; (3) that complete
information is available from court files; and (4) that any class member may appear and be heard
at the fairness hearing. See Newberg § 8.32; Packaged Ice, 2011 WL 717519, at *5 (quoting
Newberg passage); see also City of Greenville v. Syngenta Crop Prot., No. 3:10-cv-188, 2012
WL 1948153, at *4 (S.D. Ill. May 30, 2012) (stating Rule 23(e) notice contents “sufficient” with
above elements) (quoting AT&T, 270 F.R.D. at 351). For a Rule 23 (b)(3) predominance class,
the notice must also state that class members have an opportunity to opt out, that the judgment
will bind all class members who do not opt out, and that any member who does not opt out may
appear through counsel. Fed. R. Civ. P. 23(c)(2)(B). The form of notice is "adequate if it may
be understood by the average class member." Newberg § 11.53.
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Notice to class members must be "the best notice practicable under the circumstances,
including individual notice to all members who can be identified through reasonable effort."
Amchem Prods., 521 U.S. at 617 (quoting Fed. R. Civ. P. 23(c)(2)); City of Greenville, 2012 WL
1948153 at *4 (same). Notice should be mailed to members who can be identified through
reasonable effort, and other members should be notified by publication. City of Greenville,
2012 WL 1948153 at *4; see Stoller v. Baldwin-United Corp., 650 F. Supp. 341, 343–44 (S.D.
Ohio 1986) (approving combination of mailing and publication).
Plaintiffs’ proposed notice plan in this case includes: (1) direct notice given by mail or
email to each class member who can be identified by reasonable effort; (2) a summary notice
published in three trade journals (Ag Ads,13
Ag Professional, and Crop Life); and (3) the posting
of both forms of notice on a public website.
Plaintiffs have retained KCC, an experienced national class action notice provider and
class administrator, to assist with class notice for this settlement.14
Declaration of Patrick M.
Passarella, filed herewith, ¶3. KCC has experience with administering over 1,500 settlements.
Its services include settlement funds escrow and reporting, class member data management, legal
notification, call center support, and claims administration. KCC will send a notice packet to
reasonably ascertainable class members through First Class U.S. mail. Id., ¶5–6. KCC will
check the names and addresses against the USPS Change of Address database, certify them
through a coding accuracy system, and use a delivery point validation system, and follow up on
13
Ag Ads is a tabloid size publication that targets fertilizer companies, grain elevators, feed
mills, the poultry industry, commercial agricultural contracting, manufacturing and supply
companies. Ag Professional is a standard size publication that targets retailers and distributors of
crop inputs (fertilizer, seed, chemicals, etc.), crop consultants and professional farm managers.
Crop Life is a standard size publication that targets agricultural dealers and distributors,
including retailers, dealers and distributors of crop inputs, and fertilizer producers.
14 See http://www.kccllc.com.
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returned notices. KCC will also place quarter or half-page advertisements of the published
notice in the three industry trade journals. KCC will also post an informational website with a
memorable domain name, providing additional information and documents, and a toll-free
number for frequently asked questions and requests for mailing of further information.
The content of the proposed Class Notice, which consists of a summary notice and a long
form notice, fully complies with due process and Rule 23. (The proposed summary and long
form notices are attached to the Simon Declaration as Exhibit A and Exhibit B.) It defines the
class, describes the nature of the action, defines the class claims, and explains the procedure for
making comments and objections. The Class Notice describes the terms of the Settlement with
the Settling Defendants, and informs the Settlement Class Members that there is no plan of
distribution at this time. The Class Notice provides the date, time and place of the final approval
hearing, and informs class members that they may enter an appearance through counsel. The
Class Notice also informs Settlement Class Members how to exercise their rights to participate
in, opt out of, or object to the proposed settlement, how to make informed decisions regarding
the proposed Settlement, and tells them that if they do not opt out, the judgment will be binding
upon them. It further informs them about the motion of Class Counsel for reimbursement of
costs to be heard at the same time as the hearing on final approval of the proposed settlement.
“Accordingly, the Notice goes far above and beyond the requirements imposed by Fed. R. Civ.
P. 23(c)(2) and 23(e) and constitutes the best notice practicable under the circumstances of this
lawsuit.” City of Greenville, 2012 WL 1948153, at *4 (quotation omitted).
F. THE COURT SHOULD SCHEDULE A FINAL APPROVAL HEARING.
The last step in the settlement approval process is the final approval hearing, at which the
Court may hear all evidence necessary to evaluate the proposed settlement. At that hearing,
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proponents of the settlement may explain and describe its terms and conditions and offer
argument in support of the settlement approval and members of the settlement class, or their
counsel, may be heard in support of or in opposition to the settlement. Plaintiffs propose the
following schedule of events necessary for a hearing on final approval of the settlement.
DATE EVENT 1. Within 30 days after
Preliminary Approval is granted
Mailing and publication of Class Notice15
2. Within 35 days after Preliminary Approval is granted
Class Counsel will file their motion for Reimbursement of Expenses
3. 60 days after the mailing of Notice
4. 10 days after last day to opt out
Last day for Settlement Class Members to opt out of the settlement and any class member to file objections to the settlement Class Counsel shall file with the Court a list of all persons and entities who have timely requested exclusion from the Settlement Class.
5. 14 days before Fairness Hearing
Class Counsel shall file motion for final approval of settlement and all supporting papers, and Class Counsel and Settling Defendants may respond to any objections to the proposed settlement
6. 14 days before Fairness Hearing
Last day for Settling Defendants to withdraw from the Settlement and terminate the Settlement Agreement
7. No sooner than 45 days after the deadline to opt out
Final Settlement Fairness Hearing
15
Counsel for Plaintiffs requested that the Non-Settling Defendants produce a list of their customers' contact information during the class period to facilitate notice to the Class Members consistent with the requirements of Rule 23(e)(1). To date, the Agrium and Mosaic Defendants have agreed to do so. The PCS Defendants have agreed to produce the requested information only if the Court grants this motion. Simon Decl., ¶18. Depending on the timing of the production of contact information from the Non-Settling Defendants, the proposed schedule for notice to Class Members, and all other dates that follow, may need to be adjusted to allow for the receipt and analysis of the subject contact information. Counsel for DPPs will apprise the Court regarding the status of this information as necessary.
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IV. CONCLUSION
WHEREFORE, for the above stated reasons, DPPs respectfully request that the Court (1)
grant preliminary approval of the class settlement with Defendants JSC Uralkali and JSC
Silvinit; (2) certify the proposed settlement class; (3) appoint Interim Co-Lead Class Counsel as
Class Counsel; (4) appoint the named Plaintiffs as Class Representatives; (5) direct the
distribution of notice of the settlement to the Settlement Class to provide Class Members with
the opportunity to opt out and to object to the settlement; and (6) schedule the final settlement
approval process.
Dated: November 26, 2012 Respectfully submitted,
LOCKRIDGE GRINDAL NAUEN P.L.L.P.
s/W. Joseph Bruckner W. Joseph Bruckner Heidi M. Silton Craig S. Davis 100 Washington Avenue South Suite 2200 Minneapolis, MN 55401 Tel: (612) 339-6900 Fax: (612) 339-0981 Email: [email protected] [email protected] [email protected] Bruce L. Simon Jonathan M. Watkins Robert G. Retana PEARSON, SIMON, WARSHAW & PENNY, LLP 44 Montgomery Street, Suite 2450 San Francisco, CA 94104 Tel: (415) 433-9000 Fax: (415) 433-9008 Email: [email protected] [email protected]
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Direct Purchaser Plaintiffs' Interim Lead Counsel
Steven A. Hart SEGAL McCAMBRIDGE SINGER & MAHONEY, LTD 233 South Wacker Drive Sears Tower-Suite 5500 Chicago, IL 60606 Tel: (312) 645-7800 Fax: (312) 645-7711 Email: [email protected]
Direct Purchaser Plaintiffs' Interim Liaison Counsel
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23
CERTIFICATE OF SERVICE I, Steven A. Hart, state that I have served a copy of this pleading upon all counsel of record via the United States Court for the Northern District of Illinois’s ECF Document Filing System on November 26, 2012. By: s/ Steven A. Hart x] As provided by law pursuant to Rule 5(b) of Fed. Rules of Civil
Procedure, I certify that the statements set forth herein are true and correct.
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