IN RE TURKEY ANTITRUST LITIGATION

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

Case No. 19 C 8318

IN RE TURKEY ANTITRUST LITIGATION

Judge Sunil R. Harjani

MEMORANDUM OPINION AND ORDER

Carina and Amory, two investment vehicles litigating this antitrust action as assignees of

turkey purchasers, ask this Court to excuse their lateness in opt-ting out of the proposed Cargill

settlement. Specifically, the Direct Purchaser Plaintiffs (DPPs) have reached a class settlement

with Defendants Cargill, Incorporated and Cargill Meat Solutions Corporation (Cargill). On

January 30, 2025, this Court preliminarily approved the settlement and set the date for any

plaintiffs to opt-out or object by April 21, 2025. [1128]. Two of the plaintiffs, Carina Ventures

LLC and Amory Investments LLC, blew that deadline. Instead, on April 22, 2025, they sent an

email to the settlement administrator of the class stating their intent to opt-out. The email read as

follows:

Dear Settlement Administrator:

I write on behalf of Carina Ventures LLC (“Carina”) and Amory Investments LLC

(“Amory”), which are direct-action plaintiffs consolidated in In re Turkey Antitrust

Litigation, No. 1:19-cv-08318 (“Turkey”). Carina and Amory filed opt-out lawsuits

years ago and therefore have indicated their exclusion from settlements made by

the Direct Purchaser Plaintiff Class (“DPPs”). See Amory Investments LLC v. Agri

Stats, Inc., No. 21-cv-06600; Carina Ventures LLC v. Agri Stats, Inc., No. 1:23-cv-

16948. As to the specific settlement with Cargill, Inc. and Cargill Meat Solutions

Corp. (“Cargill”), Carina and Amory previously informed the Court they do not

agree to the terms of that settlement and thus are not bound by it. See Turkey, ECF

1196 at 4, 15 n.8. The Cargill settlement, by its terms, also appears to exclude

Carina and Amory. See Long-Form Settlement ¶ 11.

Nonetheless, for the avoidance of doubt, Carina and Amory hereby notify you of

their exclusion from the DPP settlements with Cargill, Farbest Foods, Inc., and

Cooper Farms, Inc. Please let us know if you need anything else from us.

Regards,

Chris Goodnow1

1 See [1262-2] at 6–7.

The administrator rejected Carina’s and Amory’s untimely opt-out and excluded them from

the opt-out list for the Cargill settlement. [1262-2] at 6; [1304-1]. Carina and Amory now seek to

have this Court approve their opt-out request. [1262]. This matter was fully briefed by Carina and

Amory, the DPPs, and Cargill, and an oral argument was held on June 18, 2025.

Carina’s and Amory’s first argument is that they timely opted-out by their filing of a direct

action against Cargill and that their conduct provided a “reasonable indication” that they intended

to exclude themselves from the settlement. [1262] at 5, 7–8, 11–14. However, the reasonable

indication test Carina and Amory advocate for is unavailable to them. The Seventh Circuit’s

decisions in Navistar and Broiler Chicken conclusively held that simply proceeding with a separate

action against a defendant is not sufficient to meet the opt-out obligations where a court has

delineated specific procedures and deadlines to opt-out. See Matter of Navistar MaxxForce

Engines Mktg., Sales Pracs., & Prods. Liab. Litig., 990 F.3d 1048, 1053 (7th Cir. 2021); Matter of

Broiler Chicken Antitrust Litig., 133 F.4th 761, 764 (7th Cir. 2025).

In Navistar, two class members argued that they should be excluded from the class

settlement, after failing to opt-out because they never received notice of the settlement or the need

to opt-out, and that their efforts to continue a separate litigation should be deemed a “reasonable

indication” of a desire to opt-out. 990 F.3d at 1050. Starting with the notice argument, the district

court found that first-class letters were sent to the plaintiffs’ business addresses (even though

plaintiffs claimed that their files did not include the letters), the plaintiffs’ had the opportunity to

provide an email address to receive notice but chose not to, that plaintiffs’ lawyers had actual notice

of the settlement, and that “[n]o modern lawyer is unaware of the procedures for managing class

actions.” Id. at 1050–51. The Seventh Circuit found that none of these findings were clearly

erroneous and rejected the argument that notice by first-class mail was insufficient. Id. at 1051.

As neither letter was returned as unclaimed, that was sufficient to satisfy “the constitutional

requirement that notice be reasonably calculated to give actual knowledge.” Id. (citing Dusenbery

v. United States, 534 U.S. 161 (2002)). Further as a “lawyer’s knowledge is imputed to the client”

and counsel “could have checked the docket of the class action, which they knew was pending,

and would have found the opt-out notice[,]” the plaintiffs had actual notice of the settlement and

opt-out deadlines. Id. The Seventh Circuit held that the district court did not abuse its discretion

in finding the plaintiffs’ delay inexcusable based on counsel’s actual knowledge of the settlement.

Id.

The Seventh Circuit then rejected the use of the “reasonable indication” test when a district

judge has detailed the opt-out procedures. Id. at 1052. The “reasonable indication” test is used by

the Second and Tenth Circuits and allows for courts to exclude from the class any members who

request exclusion and make a reasonable indication that they seek to be excluded. Id. The Seventh

Circuit held that when a court has not issued instructions about how to opt-out, then a judge is free

to use the “reasonable indication” test, but where, as in Navistar and here, the judge has issued

instructions on how to opt-out, a plaintiff cannot opt-out by other means. Id. The fact that the

plaintiffs were pursuing a separate legal action in another court does not alleviate the requirement

that they follow the opt-out procedures; instead “the judge is entitled to insist that class members

follow the instructions they have been given and opt out (or not) in the formal way the district

judge told them to use.” Id. at 1053.

More recently, in Broiler Chicken, a group of plaintiffs in a similar protein antitrust

litigation, failed to opt-out by the court-imposed deadline. Matter of Broiler Chicken Antitrust

Litig., 133 F.4th 761, 763 (7th Cir. 2025). The Seventh Circuit rejected, among other arguments,

the plaintiffs’ argument that “by filing stand-alone suits, they constructively opted out of the class”

and stated that such a position “is absurd.” Id. at 764. Instead, the court insisted that procedures

are followed as “[e]veryone is entitled to know with certainty who is in and who is out; the opt-

out procedure does this with due formality.” Id. The district court in Broiler Chicken also

separately denied Winn-Dixie’s argument that it promptly opted-out when it filed its request one

day after the deadline and also had an individual complaint filed before the approval of the class

notice plan, finding that all of this was insufficient. See In re Broiler Chicken Antitrust Litig., 2019

WL 6699664, at *2 (N.D. Ill. Dec. 9, 2019).

On January 30, 2025, this Court approved a notice plan with specific requirements that

those wishing to opt-out had to meet, including that by April 21, 2025, the plaintiff must submit a

written request to the Settlement administrator that included the following:

(a) your name, including the name of your business which purchased Turkey

products, and address; (b) a statement that you want to be excluded from the

Settlement Class in the Settlement with Cargill in In re Turkey Antitrust Litigation;

(c) if your exclusion involves an assignment of claims, then you must identify the

assignor, the assignee, and the total value of direct Turkey purchases during the

Class Period from each Defendant or co-conspirator that is subject to the

assignment, and (d) your signature. If you intend to exclude subsidiaries, affiliates,

divisions, related or controlled entities, entities under common control,

predecessors in interest, or any other related entity, such entities must be expressly

identified by name and address in your request.2

Carina and Amory did not do any of this. Indeed, to this day they have not provided the

necessary information pursuant to the Court’s order, such as the identities of the assignors who

purchased the turkey or the total value of their assigned direct turkey purchases during the class

period that they are seeking to exclude from the settlement. Carina’s and Amory’s assertions that

they did a host of other things, such as conducting their own discovery, should have made everyone

2 See [1128]; [1128-1] at 7.

aware that they wanted to opt-out does not save them under Navistar and Broiler Chicken. [1262]

at 7–8. The Court provided specific and detailed instructions on how to opt-out, which they failed

to follow. Thus, like the plaintiffs in Navistar and Broiler Chicken, Carina and Amory failed to

timely opt-out of the Cargill settlement.

Next, Carina and Amory contend that even if they failed to timely request exclusion from

the settlement, the Court should excuse their failure to meet the deadline. This brings us to whether

there is excusable neglect for their one-day late email request to the class administrator. Under

Federal Rule of Civil Procedure 6(b)(1)(B), when a party makes a request to act after a deadline

for such act has passed, the court may, for good cause, extend the time “if the party failed to act

because of excusable neglect.” Fed. R. Civ. P. 6(b)(1)(B). Courts apply this standard to class

settlement opt-out deadlines. Adelson v. Ocwen Fin. Corp., 621 F. App’x 348, 351 (7th Cir. 2015)

(applying Rule 6(b) to extend the time to opt-out in class actions); In re Broiler Chicken Antitrust

Litig., 2019 WL 6699664, at *2 (“Courts have applied [the Rule 6(b)] standard to class settlement

opt out deadlines.”).

The Supreme Court has established a multifactor test to evaluate whether the neglect was

excusable including the danger of prejudice to the nonmoving party, the length of the delay and its

potential impact on judicial proceedings, the reason for the delay, including whether it was within

the reasonable control of the movant, and whether the movant acted in good faith. Pioneer Inv.

Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 395 (1993); United States v. Cates, 716

F.3d 445, 448 (7th Cir. 2013) (“Pioneer applies whenever ‘excusable neglect’ appears in the federal

procedural rules.”). Whether the conduct is excusable is ultimately an equitable determination

within the district court’s discretion after evaluating all relevant circumstances. Pioneer, 507 U.S.

at 395; Navistar, 990 F.3d at 1051 (“A district judge has discretion to permit an untimely opt out

when the delay is excusable.”). Carina and Amory contend that each of these factors weigh in

favor of their exclusion from the settlement. [1262] at 14.

Carina’s and Amory’s explanation for why they missed the deadline is that this was simply

a mistake as their attorneys were busy with other matters, including their own case against Cargill,

and that they believed that their separate action excluded them from the settlement. [1290] at 10

(“Carina and Amory missed the opt-out deadline by one day because counsel inadvertently

overlooked it.”); [1262] at 16 (“counsel believed that Carina and Amory already had opted out

because they filed direct actions years ago and the Cargill settlement expressly excluded them.”).

Neither of these excuses have any merit. The Seventh Circuit has held that attorney error is not a

sufficient reason to find excusable neglect as “inattentiveness to the litigation is not excusable.”

Matter of Plunkett, 82 F.3d 738, 742 (7th Cir. 1996). Further, “neglect due to a busy schedule is

generally not excusable.” Cates, 716 F.3d at 449. Thus, counsel’s preoccupation with other aspects

of this case does not excuse their failure to file the opt-out request on time. Further, counsel’s

belief that they were excluded was plainly unreasonable, as the Seventh Circuit made clear in both

Navistar and Broiler Chicken that a separate action does not exclude a plaintiff from a class action

settlement. Thus, this is not a valid reason for the delay to be excused.

A party’s failure to provide a valid reason for the delay is grounds for denial. In Murphy

v. Eddie Murphy Prods., Inc., the Seventh Circuit affirmed the district court’s denial of the motion

to amend when the plaintiff failed to provide a valid reason for his delay. 611 F.3d 322, 324 (7th

Cir. 2010). In Murphy, the plaintiff sought to appeal the district court’s denial of a motion for

extension of time to amend his complaint and the dismissal of the case with prejudice. Id. The

Seventh Circuit considered whether the plaintiff had a valid reason for his delay under Rule 6 and

Pioneer and found that the plaintiff had the necessary information for years prior to the request for

an extension, so any blame for delay lay with him. Id. Therefore, he failed to identify a valid

reason for his delay and that his failure to meet court-ordered deadlines was not excusable neglect.

Id. Similarly, here, Carina and Amory provide no valid reason for why they missed the deadline

other than an oversight by their attorneys, and that is not a sufficient reason to find excusable

neglect. This oversight is particularly glaring given that Carina and Amory (as subsidiaries of a

litigation funder) are sophisticated entities who are represented by experienced counsel.

Furthermore, the need to timely opt-out should come as no surprise to Amory, who

submitted opt-out requests for itself and its assignor Maines Paper & Food Service, Inc. to the

Tyson settlement in 2022. [406]; [1274] ¶ 5. Likewise, Carina’s assignor, Sysco, timely submitted

an opt-out request for the Tyson settlement. [406]; [1274] ¶ 4. Further, their fellow direct action

plaintiffs, Winn-Dixie, Bi-Lo and Aramark, timely submitted opt-out requests from the Cargill

settlement in the form ordered by the Court’s notice, despite having their own cases in this

consolidated action. [1304-1]. Also, the docket in this case, where Carina and Amory have been

actively litigating, was replete with filings about the Cargill settlement that contained the notice

plan and the details on how to timely opt-out. [1098] – [1104] [1110] [1119] [1128]. Unlike

Navistar, where the complainers had to look at a different docket and were still held to the opt-out

deadline, Carina and Amory were litigating under the same docket as the Cargill settlement. Carina

and Amory had eighty-one days to submit the opt-out request. They did not do so. As stated

above—and despite their claims that there was only a one-day delay—they still have not done so

because their untimely email opt-out failed to include all necessary information such as total value

of their assigned direct turkey purchases during the class period that they are seeking to exclude

from the settlement. Their only explanation—attorney mistake—is not sufficient to amount to

excusable neglect.

Amory’s and Carina’s second proffered reason is that they did not receive notice of the

settlement. Upon further inquiry by the Court since the filing of their motion, this argument falls

flat. The declarations of Tracy Hanson and Brian Clark demonstrate that notices of the settlement

were sent to both turkey producers here—Sysco and Maine Paper both received notice of the

settlement in accordance with the approved notice plan, which ordered notice to the Settlement

Class.3 [1128] ¶¶ 3, 11; [1274] ¶¶ 6–8; [1303] ¶¶ 5, 13; [1304] ¶¶ 3, 5. As an additional notice,

attorney Scott Gant from Boies Schiller was mailed and emailed notice of the Cargill settlement at

his law firm email address. [1274] ¶¶ 7, 8. Gant was counsel for Carina, first in its independently

filed action (Carina Ventures LLC v. Agri Stats, Inc. et al, 1:23-cv-16948 (N.D. Ill.)) and in this

case after it was consolidated, until he withdrew as counsel on May 14, 2025, which was after the

opt-out deadline. [1277]; [1320-1] ¶ 5. Also, in letters dated October 19, 2021, and November 17,

2021, both Sysco4 (Carina’s assignor) and Amory5 respectively, identified Gant as their counsel

and that Gant should receive the communications.6 [1274] ¶¶ 4, 5. The fact that Gant claims that

he could not find any evidence of an email or paper notice is of no matter. [1320-1] ¶¶ 8–9. It is

the notice provided (not received) that is the crux of the analysis. Navistar, 990 F.3d at 1051

(“[M]ail (to the correct address) satisfies the constitutional requirement that notice be reasonably

calculated to give actual knowledge.”) (citing Dusenbery v. United States, 534 U.S. 161 (2002)).

And in this case, there is no evidence of returned mail or bounce-back email that could change that

conclusion. [1274] ¶¶ 7, 8. Also, the email address used for Gant by the administrator is the same

email address on Gant’s firm website to this day. Id. Finally, at least five lawyers, other than Gant,

for Carina and Amory have docket appearances in the Turkey litigation under case no. 1:19-cv-

8318 and received ECF notices of the proposed settlement, the Court’s preliminary approval of the

settlement and the notice plan that had all the details about the deadline to opt-out and the details

of information to include. See Navistar, 990 F.3d at 1051 (“A lawyer’s knowledge is imputed to

the client.”). Thus, Carina’s and Amory’s counsel’s “actual knowledge of the settlement is

conclusive.” Id. And to be clear, Carina and Amory knew enough to send an email request to the

administrator—the problem is that it was untimely. Therefore, there was no issue with a lack of

notice to Carina and Amory about the need to opt-out by the deadline, they simply failed to do so.

Carina’s and Amory’s third reason for excusable neglect is that they will suffer prejudice

if the settlement is approved because the terms of the settlement do not include compensation for

3 In relevant part, the Settlement Class is defined as “All persons and entities who directly purchased Turkey

from any Defendant or alleged co-conspirator in the United States at any time during the Settlement Class

Period.” [1128] ¶ 3.

4 The October 19, 2021, letter to the settlement administrator requesting an exclusion from the Tyson

Settlement included instructions that any communication regarding the exclusion should go to Barrett Flynn

(Sysco’s Associate General Counsel) and Scott Gant. [1274-1] at 2.

5 The November 17, 2021, letter to the settlement administrator requesting an exclusion from the Tyson

Settlement included instructions that all communications regarding the exclusion should go to Scott Gant.

[1274-2] at 2.

6 While in his affidavit Gant asserts that he “never entered an appearance for Amory” in any of the Turkey

litigations, this does not remove his connection to this case as the letter from Aviva Will, an authorized

signatory for Amory, instructed the settlement administrator on November 17, 2021 to direct exclusion

request communications to Gant. [1274] ¶ 5; [1274-2] at 2; [1320-1] ¶ 3.

their volume of sales. They identify various paragraphs of the proposed settlement agreement as

an indication that Carina’s and Amory’s sales were not included. [1262] at 5, 8–9. Specifically,

Carina and Amory identified three paragraphs and a footnote in the long form settlement

agreement, which they argue show an intention to exclude them from the settlement. The first two

paragraphs are within the “Litigation Standstill” provision in Paragraph 3. [1262] at 5; [1100-1] ¶

3. Paragraph 3(a) and the accompanying footnote provide that “Cargill shall cease all litigation

activities against the putative DPP class, except to the extent any putative class member has filed

or files a direct action complaint in the Action (‘Direct Action Plaintiff’)” and defines Direct Action

Plaintiff to include the Amory and Carina litigation. [1100-1] ¶ 3(a) & n.2. Similarly, paragraph

3(b) provides that the settlement should not “be construed to limit Cargill’s ability to fully defend

itself against claims asserted by Direct Action Plaintiffs[.]” [1100-1] ¶ 3(b). Finally, Carina and

Amory contend that their assigned turkey purchases are excluded from the purchase volume used

to calculate the final settlement amount. [1262] at 5 (citing [1100-1] ¶ 11).

This argument is of no merit. Those provisions only generally addressed how the settling

parties would treat the non-settling direct action claimants (current and future) in on-going

litigation, given that there are currently five entities with their own cases and more to potentially

come as a result of opt-outs from this settlement. There is nothing in the settlement agreement that

specifically states the direct action plaintiffs, or Carina and Amory, are excluded from the

settlement, or need not opt-out because they have their own action. Indeed, the Settlement Class

definition includes Sysco and Maines Paper (and thus Carina and Amory as assignees), given that

it includes all turkey purchasers who purchased from Defendants. The settlement agreement,

subject to final approval, resolves all claims (past, present or future) for the Settlement Class

against the Cargill defendants as a result of the alleged antitrust conspiracy. This plainly includes

any entity litigating their own cases, unless they timely and properly opted-out—three of the five

current individual claimants did, as did eleven other turkey purchasers. [1304] ¶¶ 10–11.

More importantly, both the DPPs and Cargill have affirmed that even when considering

Carina and Amory’s sales data, they do not reach the threshold identified in the agreement that

would cause the settlement to be undone. [1281] at 18–19; [1281-1] ¶ 4; [1317] at 3; [1318] ¶ 5.

Thus, Carina and Amory sales do not affect the settlement in any way, as their combined purchases

constitute merely 2% of overall Settlement Class purchases by Cargill. That is, whether Carina or

Amory are in or out, the settlement will stand between the parties. In any event, settlements are

negotiated between class counsel and defendants without knowledge of who will choose to stay in

or who will opt-out. It is always a possibility that those entities with their own case will choose to

fold and take the class settlement, and those who are putative class members will be unhappy with

the settlement and opt-out.

All in all, Carina’s and Amory’s prejudice—that it will be part of the class settlement rather

than be permitted to continue its action against Cargill—is one of its own making and is, crucially,

not a factor for establishing excusable neglect under Pioneer. What is a factor is the prejudice to

Cargill, as the nonmovant. Despite Carina and Amory’s attempts to downplay the harm, allowing

Carina and Amory to opt-out deprives Cargill of the ability to rely on the firm settlement deadlines

set by the Court for the court-certified, defined class and that everyone must follow. Similarly,

Carina and Amory spent much of their time at the hearing contending that allowing Carina and

Amory to opt-out follows the expectations of the parties, but their only support for this is their own

expectation that they wanted to be excluded. This argument fails to address the fact that the Court

provided clear instructions on how to opt-out that Carina and Amory failed to follow. This case is

a multi-party, complex, and six-year-old, antitrust litigation, as such there is innate value for the

litigants and the Court to know that deadlines and instructions, once set, will be followed and that

this Court will hold all litigants accountable.

As to the last factor, Carina and Amory assert that they acted in good faith. [1262] at 16.

Cargill does not meaningfully dispute this, but rather contends that they should have known about

the deadline and Navistar, and that protests of good faith conduct alone are not enough. A review

of the record shows that, unlike in cases where it seemed like a plaintiff was trying to increase their

odds of recovery by both being part of the settlement and bringing their own claim, like the plaintiff

in Navistar, it does not appear that Carina and Amory were trying to play both sides. Thus, there

is no evidence of a lack of good faith on their part. But as the Seventh Circuit noted, a “review of

our case law on excusable neglect reveals an unfortunate number of attorneys who have made

honest, if fateful, missteps in representing their clients that did not constitute excusable neglect.”

Cates, 716 F.3d at 450. Missing the opt-out deadline may well have been simply a mistake on the

part of Carina’s and Amory’s counsel, but that does not amount to excusable neglect.

As the Seventh Circuit recognized in Navistar, court deadlines and filing requirements are

everywhere, and courts have “long resisted” the complications of allowing a party to merely

reasonably indicate that it intends to do something. 990 F.3d at 1053. For example, “someone

must file a particular document (the complaint) in a particular place (the clerk’s office) by a

particular date (the statute of limitations).” Id. Likewise, rules govern when parties must answer

or respond to a complaint and failure to do so results in a Rule 55 default. Fed. R. Civ. P. 12(a);

Fed. R. Civ. P. 55(a). There are similar rules regarding the deadlines and what documents must be

filed that determine when a party can file a notice of appeal, and failure to do so results in an

inability to appeal a final order. Navistar, 990 F.3d at 1053. Deadlines for opt-out prevent parties

from upending the established class settlement process by coming in late and claiming they are not

bound by the settlement. Whether it’s one day, months, or years after—late is late. As the Seventh

Circuit put it “[m]issing a filing deadline because of slumber is fatal.” Matter of Plunkett, 82 F.3d

738, 742 (7th Cir. 1996). This Court also has “substantial discretion” in managing its docket and

enforcing deadlines. Miller v. Chicago Transit Auth., 20 F.4th 1148, 1154 (7th Cir. 2021). The fail-

safe is this Court’s ability to act within its discretion where it finds excusable neglect. The key

aspect being—not just neglect, which clearly occurred here—but excusable neglect. The Court

has found none. Accordingly, Carina’s and Amory’s Motion to Amend the Preliminary List of

Exclusion Requests from the Settlement with Cargill [1262] is denied.

SO ORDERED.

Dated: July 7, 2025 fut

Sunil R. Harjani

United States District Judge