Attorneys in a $181 million antitrust price-fixing class action involving America’s largest poultry producers want a federal judge to let them claim $68 million in fees.
In August, U.S. District Judge Thomas M. Durkin signed off on a settlement between Pilgrim’s Pride and attorneys representing a class of potentially many millions of Americans. Worth about $75.5 million, that deal resolved the largest remaining case in a collection of class action lawsuits that, combined, equaled about $181 million in payments from producers. Tyson Foods agreed to pay $99 million, the largest single amount to settle the class action against it.
Since 2016, chicken producers have defended themselves against several antitrust lawsuits, divided between those brought by direct buyers, such as supermarkets and other resellers, and end users, including restaurants and consumers. Representing consumers are attorneys Breanna Van Engelen, Shana Scarlett and Rio Pierce, of Hagens Berman Sobol Shapiro, of Seattle and Berkeley, Calif., and Brent Johnson, Benjamin Brown, Daniel Silverman and Alison Deich, of Cohen Milstein Sellers & Toll, of Washington, D.C., along with other attorneys from those firms.
The litigation incorporates similar allegations: Chicken producers allegedly boosted profits by sharing internal data to work together to suppress chicken supply so as to elevate prices, even as their price of raising the chickens, such as feed costs, dropped.
“Unlike many antitrust cases, this case began without having the benefit of a prior Department of Justice criminal case to use as a template,” the attorneys wrote in an Oct. 27 memorandum supporting their fee request.
They said they spent almost $9 million, logged more than 67,500 hours on the claims and “conducted discovery on dozens of defendants and third parties,” an effort they branded as “extraordinary even when compared to other complex antitrust litigations.”
The award request breaks down to $59.7 million in legal fees, which is a third of the settlement fund, a reimbursement of $8.75 million for out-of-pocket expenses and service awards of $2,000 for each class representative. That would leave roughly $111 million to be distributed among claimants, a class that could include more than 10 million people.
None of the settlement documents to date include an estimate on how many people may ultimately be eligible for such a cut.
However, chicken is the meat most commonly consumed in American households, according to industry data, which reports Americans consume nearly 8 billion chickens every year, or more than 80 pounds per person annually.
So it remains unknown how much a typical claimant might receive from the settlement.
“Hagens Berman and Cohen Milstein were the first to raise the issue that having the commercial indirect class … also represent consumers’ interests would lead to a conflict of interest,” they wrote in the motion. Although the commercial class “vigorously contested” that issue, the firms “conducted an independent investigation into the consumer channel, retained expert economists to evaluate and explain the different channels and provided the court with a legal ethicist’s expert opinion — even though there was no certainty they would be appointed as lead counsel.”
The firms also said they took the lead in interviewing more than 40 people, including workers for Pilgrim’s, Tyson and Perdue, as well as every employee of Agri Stats, the industry publication central to the allegations of sharing proprietary data. Preparing for those depositions included reviewing 13 million documents, they said, not including work done for third-party depositions, which included witnesses representing the U.S. Department of Agriculture.
The DOJ ultimately did get involved, winning a stay on the civil litigation. Hagens Berman and Cohen Milstein said the evidence they developed “undoubtedly helped considerably” the federal case, even as progress on their own case was frozen.
In arguing for class representative awards, the attorneys noted those people sat through nearly 100 hours of depositions, at an average of four hours each, while some supplied their personal email accounts to be searched. They said $2,000 per representative is a reasonable request, as “courts in this district routinely grant incentive payments in similar or larger amounts.”