StarKist Co. and its corporate parent, Dongwon Industries Co. Ltd., responded to the direct purchaser plaintiffs’ (DPPs), end purchaser plaintiffs’ (EPPs), and commercial food preparer plaintiffs’ (CFPPs) proposed settlement class notice plans, claiming that each is plagued with “critical infirmities.” The defendants’ concerns partly arose from the Ninth Circuit’s April 6 opinion vacating class certification for all three classes in the multi-district antitrust lawsuit alleging that packaged seafood companies conspired to fix product prices.
Last Thursday’s brief explained the case’s relevant history, starting with the district court’s granting of class certification in 2019, followed by certain defendants’ appeal. While the appeal was pending, the plaintiff classes purportedly reached settlements with defendant Chicken of the Sea (COSI). On March 31, the DPPs moved for preliminary approval of their settlement.
The appellate panel rendered its decision April 6, vacating the certification of the suit’s litigation classes and remanding with instructions to resolve disputes concerning the number of uninjured parties in each proposed class before assessing predominance. Three days later, the EPPs and CFPPs filed motions for preliminary approval of their settlements with COSI.
Then, on April 28, the Ninth Circuit issued an order “indicating that a judge had sua sponte called for a vote on whether to rehear the appeal en banc and directed the parties to submit briefs by May 19, 2021 addressing whether the case should be reheard.”
In last week’s response, StarKist and Dongwon contested the content and wording of the plaintiffs’ proposed notice for the settlement classes. The defendants argued that the DPPs’ proposed notice “repeatedly refers to the certification of a litigation class and prompts class members to opt-out by a certain date or else lose their rights to sue.” The defendants contended that this is misleading in light of the Ninth Circuit’s vacatur of the DPP litigation class.
Likewise, the CFPPs’ proposed notice plan is misleading and confusing, the defendants claimed, because it omits mention of the Ninth Circuit’s vacatur. Finally, the EPPs’ proposed notice reportedly “mischaracterizes the record” because, though it is properly directed at only the proposed EPP settlement class, it claimed that the vacatur decision “turned on a ‘narrow economic issue.’ ” StarKist and Dongwon contested this assertion, arguing that the EPP counsel’s interpretation of the appellate decision is both wrong and irrelevant.
Such superfluous information, they contended, will confuse class members. In turn, the defendants requested that the court order the DPPs, CFPPs, and EPPs to submit revised proposed notices that focus on the proposed settlement classes.
StarkKst and Dongwon are represented by Latham & Watkins LLP.