CHICAGO — Although few details have emerged, lawyers representing a class of retail consumers are asking federal judges to give early approval to a $104 settlement with several poultry producers accused of fixing chicken prices.
Lead counsel Hagens Berman Sobol Shapiro, with offices in Seattle and Berkeley, Calif., filed a memorandum March 1 with U.S. District Judge Thomas Durkin and Magistrate Judge Jeffrey Gilbert regarding settlement with four producers: Tyson Foods, Fieldale Farms, Peco Foods and George’s Farms. According to the filing, Tyson would provide $99 million to the settlement fund, the others would each give $1.7 million or $1.9 million.
The lawsuit goes back more than four years, with the lead counsel appointment taking place Dec. 14, 2016. At the same time, Cohen Milstein Sellers & Toll, of New York became additional counsel for end-user consumer plaintiffs. Similar to ongoing litigation involving wholesale poultry purchasers, the consumer class plaintiffs allege poultry producers violated federal antitrust law by conspiring to suppress production in an effort to inflate market prices.
Other lawsuits, brought by restaurants and others, remain pending in federal court, with more lawsuits being added by the day, seeking a cut of the potential payouts.
Central to the complaint are allegations the producers regularly updated Agri Stats, a platform of industry data available only to chicken producers, which enabled them to drive up market price by as much as 50 percent since 2008, even while production costs, such as feed, were dropping 20 percent or more.
In June 2019 the U.S. Department of Justice intervened in the consumer case, which the plaintiffs’ lawyers say “has resulted in multiple indictments for bid rigging and price fixing.”
According to the memorandum, each of the producers would pay into a settlement fund used to compensate class members and cover the expense of litigation. The different amounts each producer would pay are linked to respective market share, representing $2.74 million per point. That figure puts the overall value of the litigation at more than $274 million, as the four producers involved in the settlement represent only 38% of the market.
The settlement terms also reflect cooperation each agreed to provide in continued pursuit of claims against other producers. Fieldale would provide a trial witness to confirm contents of submitted evidence and would join Tyson, Peco and George’s in cooperating with efforts regarding authentication or admissibility of documents.
Tyson also would provide up to three past or present employees as witnesses, including one “with extensive experience in working with Agri Stats reports.” Tyson won’t oppose deposition of six individuals, will continue to respond to plaintiffs’ lawyers questions, help “understand structured data produced by Tyson” and meet with class representatives for seven hours to “proffer a reasonably detailed description of the principal facts known to Tyson that are relevant to the alleged conduct at issue in the action, including facts previously provided to the DOJ or any other U.S. government investigative authority in response to subpoenas or otherwise relating to bid-rigging or price fixing.”
According to the memorandum, the class could include millions of people who bought fresh or frozen raw chicken — except products marked halal, kosher, free range or organic — from the four defendants in 23 different states and Washington, D.C., from Jan. 1, 2009, through July 31, 2019. In Rhode Island, the class period would begin July 15, 2013. According to the memorandum, class members could self identify or the legal team could use grocery store data to locate eligible consumers.
The request for preliminary approval doesn’t include information about how much of the settlement pool would be set aside to pay lawyers, allocations for class representatives or a means of determining how much individual consumers could recover. If granted preliminary approval and certification, class counsel would provide an update on collecting class information within 90 days.
The class action has been led by attorneys Steve W. Berman, Breanna Van Engelen, Shana E. Scarlett and Rio S. Pierce, of the Hagens Berman firm; and attorneys Kit A. Pierson, Brent W. Johnson, Benjamin D. Brown, Daniel H. Silverman and Alison Deich, fo the Cohen Milstein firm.