# In re Broiler Chicken Antitrust Litigation

> District Court, N.D. Illinois · December 27, 2019

URL: https://www.frixlaw.com/law-library/cases/10645131

## Case

- **Court:** District Court, N.D. Illinois
- **Decided:** December 27, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

IN RE BROILER CHICKEN ANTITRUST | Case No. 1:16-cv-08637
LITIGATION
This Document Relates To: All Actions Magistrate Judge Jeffrey T. Gilbert

MEMORANDUM ORDER
I,
Direct Purchaser Plaintiffs’ Motion for Protective Order to Protect Class Members from
Misleading Solicitations [ECF 2331] is granted in part as to Affiliated Foods Plaintiffs’ counsel —
The Coffman Firm, Kaplan Fox & Kilsheimer, LLP, and Williams Montgomery & John, Ltd.
(together “AFI Plaintiffs’ Counsel”) — and denied as to counsel for all other so-called Direct Action
Plaintiffs (‘DAPs”). For the reasons discussed below, AFI Plaintiffs’ Counsel immediately shall
cease and desist from sending to any named class representative or member of the putative or any
certified Direct Purchaser Plaintiff (“DPP”) litigation or settlement class, other than their then-
existing clients, any unsolicited communications, including without limitation solicitations for
legal representation, relating to this consolidated Jn re Broiler Chicken Antitrust Litigation, No.
16-cv-8637 (N.D. Ill.). Any such future communications by AFI Plaintiffs’ Counsel must be
approved by the Court until further court order. Nothing in this Order prevents AFI Plaintiffs’
Counsel from communicating with any person or entity about this litigation if such person or entity
contacts AFI Plaintiffs’ Counsel without having first been solicited to do so directly or indirectly
by such counsel.

The Court is not yet persuaded that a corrective notice is required because of AFI Plaintiffs’
Counsels’ past communications that are the subject of the DPPs’ Motion or, if such a notice is
necessary, what it should say. See Section III of this Order below. Among other things, this
Motion has been pending for some time, and the Court does not know whether there have been
communications by AFI Plaintiffs’ Counsel in addition to those referenced in the Motion. In
addition, even if such a notice is necessary, the Court is not presently inclined to allow DPPs’
counsel to send such a corrective notice to putative DPP class members directly. It may be that
any corrective notice should come from AFI Plaintiffs’ Counsel or should be filtered through
UniPro as have other communications. If necessary, after the involved counsel have met and
conferred as required in Section III of this Order, the Court will set a hearing to address whether a
corrective notice is required, and if so, what such a notice should say and the mechanism by which
it will be sent. The portion of DPPs’ Motion requesting corrective notice relief therefore is denied
without prejudice.
Il.
As athreshold matter, it is undisputed that “a district court has both the duty and the broad
authority to exercise control over a class action and to enter appropriate orders governing the
conduct of counsel and the parties.” Gulf Oil Co. v. Bernard, 452 U.S. 89, 100 (1981). This
authority extends to the court’s ability to limit communications between parties and potential or
putative class members. Williams v. Chartwell Fin. Servs., 204 F.3d 748, 759 (7th Cir. 2000).
Although in many cases, a court is concerned with communications between putative class counsel
or defendants and putative or actual class members, there is no reason the rationale of these cases
does not apply to communications to putative or actual class members from counsel for opt-out or
so-called “direct action plaintiffs.” Gulf Oil, 452 U.S. at 100; Piekarski v. Amedisys Ill., LLC, 4

F. Supp. 3d 952, 955 (N.D. Ill. 2013) (“[D]istrict courts have restricted communications with
potential class members not only by plaintiffs but also by defendants, as well as communications
before a class is certified.”).
Courts may limit communications in these situations “only if the order is “based on a clear
record and specific findings that reflect a weighing of the need for a limitation and the potential
for interference with the rights of the parties.’” Burrow v. Sybaris Clubs Intl., Inc., 2014 WL
5310525, at *2 (N_D. Ill. 2014), citing Gulf Oil, 452 U.S. at 104. “The party seeking to limit
communications ... bears the burden of showing that the nonmovant has engaged in coercive,
misleading, or other abusive communications with the putative class.” Jd., citing Piekarski, 4 F.
Supp. 3d at 955.
The Court finds the solicitations and communications by AFI Plaintiffs’ Counsel
referenced in DPPs’ Motion are, in material respects, slanted, misleading, confusing, and
incomplete for many of the reasons argued by the DPPs. The March 2018 solicitation letter on the
letterhead of The Coffman Law Firm [ECF 2331-3] misleadingly states that the purpose of the
court status conference on February 7, 2018, was “to determine the most efficient manner in which
to assimilate the newly filed direct action plaintiff (DAP) cases” when, in fact, that was not the
only or even the primary purpose of the conference. See Agenda for February 7, 2018 Status
Conference [ECF 707] and Transcript of Conference [ECF 718]. The letter is a “hard sell”
designed to convince putative DPP class members to opt out of the putative class and hire AFI
Plaintiffs’ Counsel to represent them, and it makes it seem as if such a decision must be made
quickly. AFI Plaintiffs’ Counsel defend their use of the phrase “the train is leaving the station” in
this letter as somehow paraphrasing the Court’s use of that term during the February 7 status
conference. In this context, though, the phrase reads as a high-pressure tactic designed to force a

quick decision to opt out of the class by the recipients of the letter. See Piekarski, 4 F. Supp. 3d
at 955 (“Of particular concern to courts is whether ‘a party has . . . attempted to discourage class
members from participating in the class.’”).
The entire tenor of AFI Plaintiffs’ Counsels’ letter is to discourage companies from
remaining in the DPP class action and to become clients of AFI Plaintiffs’ Counsel. It puts forth
a one-sided and slanted explanation of the benefits of opting out of the putative class action and
becoming a “direct action” plaintiff without articulating any of the burdens, risks, or
responsibilities of filing one’s own case. It proffers what appears to be an extremely early estimate
of potential recoverable damages as if it is authoritative because it comes from “our economic
consultant” without any explanation of the basis for such speculation or its relevance for an
individual direct purchaser in a case in which damage calculation is likely to be complicated,
nuanced, and layered. The letter poses the question “[i]f your DAP competitors get paid, why
shouldn’t you?” without mentioning that direct purchasers also can get paid if the class action is
successful. And it confusingly references a “damages period” of 2008 to 2016 in the body of the
letter while the draft retention letter included with the packet only asks for the dollar amount of
Chicken purchases going back to 2012.
The April 2018 letter to Unipro members [ECF 2940-1] is more factual but still incomplete
and misleading in material respects. It mentions that the DPP class action “has [not] been certified
to date” with no context to explain why that is the case, omits any mention of the conditional
certification of a DPP settlement class in connection with the Fieldale Farms settlement and,
relatedly, does not mention that UniPro members are included in the DPP settlement class even if
they do nothing. This letter also recommends that companies that purchased less than $50 million
in Chickens between 2008 and 2016 not opt out of the putative class action while the next

communication in May 2019, discussed below, seemingly raises that threshold to $100 million
without any explanation. Stated another way, the May 2019 letter says AFI Plaintiffs’ Counsel is
not interested in representing anyone with less than $100 million in purchases during the relevant
time period when in April 2018 they were willing to take on clients with at last $50 million in
purchases, leaving as at least a potentially open question the status of a company that purchased,
say, $70 million in Chickens during the relevant time.
The May 2019 letter to UniPro Membership [ECF 2331-2] is the last one referenced in
DPPs’ Motion. Although AFI Plaintiffs’ Counsel appear to disclaim to some extent ownership or
knowledge of this “Case Update” from UniPro’s chief executive officer, the bulk of the letter is
captioned “Case Update provided by the Attorneys.” AFI Plaintiffs’ Counsel acknowledge
providing such a case update to UniPro and knowing that it was disseminated. [ECF 2937] at 12,
n. 12. This letter conspicuously ignores the existence of the class action other than with a back-
handed reference to the AFI Plaintiffs’ Counsels’ filing of the “first non-class, direct action
purchaser case” (emphasis added) and, as noted above, it particularly solicits companies that
purchased at least $100 million during the 2008-2016 relevant time period to contact those lawyers
by name. As noted above, there is no mention of the options for putative class members who
purchased less than that dollar amount of Chickens but more than the $50 million in purchases
referenced in the April 2018 communication or the realistic pros and cons of opting out of the
class.
These communications are misleading, slanted, and potentially confusing to putative class
members. Although AFI Plaintiffs’ Counsel characterize the putative class as primarily consisting
of large sophisticated Chicken purchasers with in-house counsel, there is no evidence that all of
the people or entities that received these unsolicited solicitations of legal representation from AFI

Plaintiffs’ Counsel can be characterized in this way. Moreover, even for sophisticated parties,
unsolicited communications for legal representation like these present a real danger of
undermining the legitimate purposes of Rule 23 class actions by, among other things, downplaying
the costs, risks, and obligations for companies that opt-out of the putative class to pursue their own
claims including the cost and responsibility to participate diligently and on a timely basis in
discovery. Based on the Court’s observations, not all of the companies that have become DAPs
in this case appear to fully appreciate that responsibility in terms of responding to written discovery
on a timely and complete basis. Dissemination of misleading information about the status of the
litigation, the role of the class and non-class plaintiffs in the case, the economic threshold at which
it may make sense to pursue an individual non-class claim, and the period for which class and non-
class members need to retain purchase and other records relevant to the computation of damages
only complicates the management of a large case that presents a host of other case management,
proof, and trial challenges.
Other DAP counsel in this case are careful not to endorse the aggressive tactics of AFI
Plaintiffs’ Counsel in filings that urge the Court at least not to grant DPPs any relief against those
counsel or their clients based upon the conduct of AFI Plaintiffs’ Counsel. One group labels itself
“Uninvolved DAP Counsel” to distinguish themselves from the AFI Plaintiffs’ Counsel who are
the main target of DPPs’ Motion. See Uninvolved DAP Counsels’ Opposition to Direct Purchaser
Plaintiffs’ Motion for Protective Order to Protect “Class Members” [ECF 2930] at 1 and 4, n.5
(“The DPPs’ attempt to blur the distinction between the three firms that were party to the disputed
communications and Uninvolved DAP Counsel cannot make up for the absence of evidence that
the latter did anything justifying the extraordinary relief requested.”). Another group is careful to
“take no position regarding the propriety of the communications that prompted the Class to file its

Motion.” See DAP Law Firms Kenny Nachwalter, P.A.’s and Sperling & Slater, P.C.’s Opposition
to DPPS’ Motion for Protective Order [ECF 2938] at 3 and 2 (“Whatever the merits of [DPPs’]
concern about other firms, the Class’s Motion has no cognizable application to the Kenny
Nachwalter and Sperling & Slater firms or our clients.”). Still another group starts off by saying
it “is not one of the firms that are the subject of the Motion and has not been accused of engaging
in anything remotely improper.” See Bilzin Sumberg’s Response to Direct Purchaser Plaintiffs’
Motion for Protective Order [ECF 2936] at 1.
This is precisely the kind of situation in which a court is justified in imposing limits upon
the ability of certain parties and their counsel to communicate with putative class members,
particularly with aggressive solicitations of legal representation covering claims that are
represented to reach into the hundreds of millions or even billions of dollars. As the Supreme
Court said in Gulf Oil, U.S. at 101, “[a]n order limiting communications between parties and
potential class members should be based on a clear record and specific findings that reflect a
weighing of the need for a limitation and the potential interference with the rights of the parties. .

.. In addition, such a weighing — identifying the potential abuses being addressed — should result
in a carefully drawn order that limits speech as little as possible, consistent with the rights of the
parties under the circumstances.” See also Williams, 204 F.3d at 759. The Court has taken into
consideration all of these factors and finds that they militate in favor of the relief the Court is
granting today.
The record here is clear. The communications by or on behalf of AFI Plaintiffs’ Counsel
are misleading, slanted, and confusing for the reasons discussed above. The Court has weighed
the need for the limitation imposed by this Order against the potential interference with the rights
of the AFI Plaintiffs and AFI Plaintiffs’ Counsel to communicate with putative class members

about this litigation and finds the balance strongly tips in favor of regulating future
communications in light of the misleading and incomplete communications AFI Plaintiffs’
Counsel sent or caused to be sent in the past and the high stakes involved in this litigation for the
parties as well as their lawyers. Regulating such communications in the future as this case emerges
from almost a year-long stay occasioned by a United States Department of Justice criminal
antitrust investigation will curb the potential for abuse of the process of moving this case to and
through trial as expeditiously as possible. Importantly, the Court is not prohibiting any and all
communications to putative DPP class members by AFI Plaintiffs’ Counsel; it is only prohibiting
communications by those lawyers that have not first been vetted by the Court so that whatever
information is communicated is fair, balanced, and not slanted, misleading, incorrect, or confusing.
And nothing in the Court’s Order infringes upon any counsel’s communications with his or her
then-existing clients.
The Court acknowledges that a litigation class has not yet been certified so that interim co-
lead and liaison counsel for the putative DPP class do not necessarily have an attorney-client
relationship with all of the absent members of the putative DPP class to whom AFI Plaintiffs’
Counsel sent or caused to be sent the solicitations and communications described above. Resnick
v. Am. Dental Ass’n, 95 F.R.D. 372, 376 and n.6 (N.D. II. 1982) (Shadur, J.). DPPs point out,
however, that at least one named class representative received a letter from or on behalf of AFI -
Plaintiffs’ Counsel and that communication with and solicitation of a represented party would
infringe upon an existing attorney-client relationship. Jd Certification of settlement classes for
one-off settlements with some Defendants does not change the relationship of DPPs’ counsel with
the broader uncertified putative DPP class though it may change the equation as to the relationship
between DPPs’ counsel and the members of the conditionally certified settlement classes. This

Order, however, is not premised solely on AFI Plaintiffs’ Counsel interfering with an attorney-
client relationship. It is, rather, also justified by the Court’s broad supervisory authority over class
actions whether putative or certified in whole or in part under the Federal Rules of Civil Procedure,
including without limitation Rules 23(d) and 83(b), as has been recognized by the courts for
decades. Gulf Oil, 452 U.S. at 99-100, citing Coles v. Marsh, 560 F.2d 186, 189 (3rd Cir.), cert.
denied 434 U.S. 985 (1977). See also Manual for Complex Litigation (Fourth) 2010 at § 21.12.
III.
As to the matter of a corrective notice, the Court needs more information. The first
solicitation by AFI Plaintiffs’ Counsel flagged by DPPs occurred in March 2018 and the last in
May 2019. The Court does not know whether there have been other communications while this
Motion (which was fully briefed in August 2019) has been pending. The Court recognizes that
AFI Plaintiffs’ Counsel offered to facilitate the sending of a corrective notice at some point, but
those discussions apparently fell by the wayside. DPPs ask that any corrective notice include a
statement that putative class members who signed up with AFI Plaintiffs’ Counsel can rescind
their retention agreements, but that would seem to apply, for example, at least directly only to
companies that have retained AFI Plaintiffs’ Counsel and not to every company that received a
solicitation. The Court also needs more information about why interim co-lead and liaison counsel
for the putative DPP class need a list of everyone to whom AFI Plaintiffs’ Counsels’ solicitations
were sent, and whether that information already has been provided to them. See Affiliated Foods
Plaintiffs’ Memorandum of Law in Opposition to the Direct Purchaser Plaintiffs’ Motion for
Protective Order [ECF 2937] at 3 (“[DPPs] also conveniently fail to disclose to the Court in their
motion that AFI Plaintiffs’ counsel agreed to give them the mailing list. . . .”).

The Court also has some trepidation about allowing putative class counsel to blanket the
putative class with a pre-certification notice as opposed to requiring AFI Plaintiffs’ Counsel to
circulate a corrective notice using the same means they used to communicate with putative class
members in the past. In addition, although the Court does not necessarily believe that notices of
certain partial settlements cured all the problems with AFI Plaintiffs’ Counsels’ past solicitations,
they may have provided enough information as a practical matter such that, combined with the
passage of time since the last AFI Plaintiffs’ Counsels’ solicitation, there may not be a need for
another communication at least to the entire putative class.
The Court would like interim co-lead and liaison counsel for the putative DPP class to
discuss these issues with AFI Plaintiffs’ Counsel and then file a supplemental memorandum
concerning whether a corrective notice still is necessary and, if so, the mechanism for any such
notice. That filing also should discuss who should be required to pay for any corrective notice that
is required. The Court then will give AFI Plaintiffs’ Counsel an opportunity to respond. If after
they meet and confer about the subject, counsel can file a joint submission, then the Court
encourages them to do so. The Court is reluctant to set a date for these filings knowing that all
parties are now engaged in an expedited effort to come up with a case management plan that will
allow this case to be tried in the fall of 2021. [ECF 3334, 3358.] The Court would prefer to allow
counsel for the involved parties to work out a schedule for themselves with a suggestion that co-
lead and liaison counsel for the putative DPP class file whatever they want to file (or that a joint
submission be filed) by the end of January 2020. If no final decisions have been made by that
time, the Court directs involved counsel at least to file a short status report by that date indicating
where they stand on these issues and when any filing(s) can be expected.

10

IV.
Accordingly, for all these reasons, Direct Purchaser Plaintiffs’ Motion for Protective Order
to Protect Class Members from Misleading Solicitations [ECF 2331] is granted in part, denied in
part, and denied without prejudice in part as to any corrective notice.
It is so ordered.

“4 es
effrey T. Gijvert
nited States Magistrate Judge
Dated: December 27, 2019

11

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10645131. Public record. Not legal advice.