Dial Corp. v. News Corp.

317 F.R.D. 426, 2016 U.S. Dist. LEXIS 150528, 2016 WL 6426409
District Court, S.D. New York·Decided October 31, 2016·No. 13cv6802·Published·Cited by 23 cases

Opinion

OPINION & ORDER

WILLIAM H. PAULEY III, District Judge;

Plaintiffs The Dial Corporation, Henkel Consumer Goods, Inc., Kraft Heinz Foods Company f/k/a H.J. Heinz Company, Foster Poultry Farms, BEF Foods Inc., Smithfield Foods Inc., and HP Hood LLC (the “Plaintiffs”), representing a class of non-retailer consumer packaged-goods firms in the United States (the “Class” or “Class Members”), seek final approval of a $244 million settlement with Defendants News Corporation, News America Incorporated, News America Marketing In-Store Services, LLC, and News America Marketing FSI, LLC (the “Defendants”). The proposed settlement (the “Settlement”) resolves this class action involving claims that Defendants monopolized the in-store promotion (“ISP”) services market. The five law firms purporting to represent the Class — Berry Law PLLC (“Berry”), Kellogg Huber Hansen Todd Evans & Figel PLLC (“Kellogg Huber”), Susman Godfrey LLP (“Susman Godfrey”), Kramer Levin Naftalis & Frankel LLP (“Kramer Levin”), and McKool Smith (“MeKool Smith”) (collectively, “Counsel”) — also seek this Court’s approval of their request for attorneys’ fees and expenses.

For the following reasons, the motion for approval of the Settlement is granted, and the motion for approval of attorneys’ fees and expenses is granted in part and denied in part.

I. Background

A. Investigation and Litigation Leading to Settlement

The factual and procedural background undergirding this class action is described in detail in this Court’s prior opinions and orders. See, e.g., Dial Corp. v. News Corp., 13-cv-6802 (WHP), 2016 WL 690895 (S.D.N.Y. Feb. 9, 2016); Dial Corp. v. News Corp., 165 F.Supp.3d 25 (S.D.N.Y. 2016); Dial Corp. v. News Corp., 314 F.R.D. 108 (S.D.N.Y. 2015). [429]*429Accordingly, a brief summary suffices for purposes of these motions.

Beginning in 2010, Berry and Kellogg Huber devoted substantial resources and hundreds of hours investigating Defendants’ alleged monopolistic activities in the ISP market. In December 2012, they filed an antitrust action in the Eastern District of Michigan, alleging various state and federal antitrust claims against Defendants. In 2013, that putative class action was transferred to this district — where Defendants had filed a related declaratory judgment action1 — as three more law firms made appearances on behalf of several packaged goods companies alleging injuries from Defendants’ anticompetitive conduct.

Because the allegations concerning anti-competitive conduct dated back to the early aughts, discovery was breathtaking: 11 million documents were reviewed and exchanged; dozens of current and former officers and employees were deposed; and six experts in economics and marketing provided reports and testimony. Numerous discovery disputes were resolved by this Court over the course of the litigation.

Motion practice was equally robust and class certification fiercely contested. Eventually, the Class was certified but not before Defendants filed an unsuccessful interlocutory appeal of this Court’s certification decision. Defendants followed on with double-barreled motions for summary judgment and to exclude the testimony of Plaintiffs’ experts at trial. To suggest that those motions were extensively briefed and argued would be an understatement. In January 2016, this Court denied both. (ECF No. 420.) With trial looming, the parties filed a barrage of 26 in limine motions (see ECF Nos. 461, 465, 471), and Defendants intensified their efforts to mount any challenge to Plaintiffs’ claims, raising scores of issues concerning the class period, the admissibility of pre-class period evidence, and the effect of releases entered into between Defendants and various Class Members, to name just a few.

Against this backdrop, the parties explored the prospect of settlement. Beginning in November 2015, Defendants sought to negotiate separate resolutions of these antitrust claims with 23 of the largest Class Members. Those efforts, which were also the subject of motion practice, proved somewhat fruitful — by February 24, 2016, Defendants reported that they had entered into private, individual settlements totaling $30 million with five large, absent Class Members.

Settlement discussions between Counsel and Defendants reached a fever pitch in the days leading up to jury selection and trial. After a concerted effort to negotiate a settlement in the courthouse, the parties executed a term sheet embodying the critical terms of the settlement at the end of the first day of trial. Through March and April, the parties finalized the long form of the settlement and presented it to this Court for its review. On June 2, 2016, this Court preliminarily approved the Settlement, and thereafter, notice of the Settlement was mailed to all Class Members. On September 21, 2016, this Court conducted a final settlement hearing.

B. Terms of the Settlement Agreement

The Settlement provides that Defendants will pay $244 million into a common settlement fund (the “Fund”) to be distributed on a pro rata basis to the Class determined by the amount of ISPs purchased by each Class Member during the class period. After the initial distribution, any unclaimed funds will be distributed in subsequent rounds, pro rata, to Class Members that deposited previously distributed checks until all proceeds have been exhausted. No portion of the Fund will be returned to Defendants, nor will any remaining funds be subject to a cy pres provision.

The Settlement also features several forms of structural relief designed to protect Plaintiffs against the anticompetitive conduct alleged in this action. For the next five years, Defendants will not: (i) enter into any exclusive ISP contract with a retailer for a term longer than 30 months other than to meet competition or at the written request of the retailer; (ii) enter into a binding renewal of [430]*430any contract with a retailer for more than 18 months before the expiration of the contract unless the retailer requests an earlier renewal; and (Hi) prohibit retailers from disclosing the termination dates of their ISP contracts to prospective competitors of Defendants.

The Settlement contains an alternative dispute resolution (ADR) clause requiring any dispute involving the Settlement or any antitrust, competition, or comparable claim that accrues five years after approval of the Settlement to be submitted to mediation, and if not resolved by mediation, to binding arbitration. But any dispute relating to Defendants’ compliance with the structural relief more than three years after approval of the Settlement is not subject to arbitration. Finally, the Settlement prohibits any additional opportunity to opt out, and forecloses any admission of liability by Defendants.

Notice of the Settlement was sent to Class Members soon after the Court entered its preliminary approval order. It established a deadline to file objections and proofs of claim.

In the Claims Administrator’s latest filing with the Court, 317 claims (45.35% of the Class) were submitted, representing 87.44% of Defendants’ purchases, (Sept. 20, 2016 Declaration of Rachel Christman (“Christ-man Decl.”) at ¶3, ECF No. 594.) On September 30, 2016, Counsel provided an updated count, and the number of filed claims increased marginally to 328 although it is impossible to determine the percentage of qualifying purchases (as determined by Defendants’ purchase records) covered by those claims.

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Dial Corp. v. News Corp., 317 F.R.D. 426, 2016 U.S. Dist. LEXIS 150528, 2016 WL 6426409 (S.D.N.Y. 2016).

317 F.R.D. 426 (Dial Corp. v. News Corp.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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