In re Potash Antitrust Litigation

161 F.R.D. 411, 1995 U.S. Dist. LEXIS 11757, 1995 WL 307567
District Court, D. Minnesota·Decided May 2, 1995·No. MDL No. 981; Civ. No. 3-93-197·Published·Cited by 2 cases

Opinion

MEMORANDUM ORDER

ERICKSON, United States Magistrate Judge.

I. Introduction

This matter came before the undersigned United States Magistrate Judge pursuant to a special assignment, made in accordance with the provisions of Title 28 U.S.C. § 636(b)(1)(A), upon the Plaintiffs’ Motion for Leave to Disseminate Class Notice. The Defendants have challenged the form and content of the Notice that the Plaintiffs have proposed and, in turn, the Plaintiffs have objected to the Notice that the Defendants have suggested. With the concurrence of the parties, we have considered the issues on their written submissions.

For reasons which follow, we direct that the Notice, which is attached hereto, be transmitted, by first-class mail, to each potential class member whose address is known to the parties, and that one publication of the Notice be effected in the national edition of the Wall Street Journal We further direct that the class members be afforded a period of sixty (60) days in which to exercise their right to opt-out of the action. Lastly, all expenses attendant to the provision of the Notice, with the exception of any costs incurred by the Defendants in identifying the class members, be borne by the Plaintiffs.

[412]*412II. Discussion

By and large, the parties’ objections, to the Notices drafted by the other, are stylistic or semantical. Each has correctly noted that the Notice authored by the opposing party impermissibly skews the tenor and, therefore, the purpose of the Notice. While we would prefer to commit the adjustment of those language differences to the parties, that process is both unwieldy and time-consuming, given the number of attorneys who are involved here.1 As a consequence, we have drawn from the proposals advanced by the parties in promulgating a Notice which complies with the requisites of Rule 23(c)(2), Federal Rules of Civil Procedure.

In pertinent part, Rule 23(c)(2) provides as follows:

[T]he court shall direct to the members of the class the best notice practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort. The notice shall advise each member that (A) the court will exclude the member from the class if the member so requests by a specific date; (B) the judgment, whether favorable or not, will include all members who do not request exclusion; and (C) any member who does not request exclusion may, if the member desires, enter an appearance through counsel.

The Notice we have prepared satisfies the foregoing requirements, is neutral in its content, and is “reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” Mulleme v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314-15, 70 S.Ct. 652, 657, 94 L.Ed. 865 (1950). In the interests of completeness, however, we address those issues which have separated the parties, and those which the parties have not addressed or otherwise resolved.

1. The Relevant Time Parameters for the Class. The parties are at odds as to the relevant time parameters for the class. The Defendants propose the period from “April 1987 to and including April 1, 1993,” while the Plaintiffs have adopted the time constraints enunciated in the District Court’s definition of the class; namely, the period from “April 1987 to and including July 8, 1994.” The difference rests in the fact that the Defendants have employed the filing date of the Plaintiffs’ initial class action Complaint, which was filed on April 1,1993, while the Plaintiffs and the District Court have selected the filing date of the Plaintiffs’ Third Amended and Consolidated Class Action Complaint. We find no reason to disagree with the District Court’s acceptance of the July 8, 1994, date as an appropriate time boundary for inclusion in the class, and the Defendants offer none. Accordingly, we accede to the time parameters enunciated by the District Court in its Class Certification Order of January 12, 1995.2

2. The Publication of a Summary Notice. Expressing concern that a nationally published Notice, albeit in summarized form, may adversely impact upon their economic condition, the Defendants urge that the Notice to class members be restricted to direct mailings. While direct mailings may satisfy the precepts of due process, we note that Rule 23(c)(2) clearly evinces an intent that something more than direct mailings may be required. In the words of the Rule, “the best notice practicable under the circumstances,” is modified by the phrase— “including individual notice to all members who can be identified through reasonable effort.” Of course, if direct mailings—in and of themselves—were sufficient, then there would be no purpose in the employment of the modifier “including.”

[413]*413Accordingly, we are satisfied that the general practice of including a generalized publication of a Notice to class members serves the worthy purpose of supplementing direct mailings in the event that an absent class member’s address is misidentified, is changed, or is otherwise unavailable. While we are concerned about any unnecessary disadvantage that the required Notice may have upon any or all of the Defendants, we are satisfied that the neutral content of the Notice in this instance will not wreak the “extreme disruption” in business which has concerned the Courts in the past. See, e.g., Fogie v. Rent-A-Center, Inc,, 867 F.Supp. 1398, 1404 (D.Minn.1993), citing Katz v. Carte Blanche Corp., 496 F.2d 747, 762 (3d Cir.), cert. denied, 419 U.S. 885, 95 S.Ct. 152, 42 L.Ed.2d 125 (1974). Here, the Plaintiffs propose no more than a single publishing in the national edition of the Wall Street Journal, and we find such a publication of Notice to be consonant with proper and adequate notice under all of the circumstances.

3. The Employment of an Exclusion Form. The Defendants have promoted the employment of an exclusion form which would be utilized by those potential class members who should choose to opt-out of the class. Such an exclusion form is expressly endorsed by the Manual for Complex Litigation, which has incorporated a suggested form to be utilized, and it has been employed by the Courts on prior occasions. Manual for Complex Litigation (Second) § 30.21 at page 210; Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 811, 105 S.Ct. 2965, 2974, 86 L.Ed.2d 628 (1985); In re Agent Orange Prod. Liab. Litig., 818 F.2d 145, 178 (2d Cir.1987); Roman Catholic Bishop v. Reader’s Digest Ass’n, Civil Case No. 93-1953, 1994 WL 836334 (S.D.Cal. Nov. 2, 1994).

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In re Potash Antitrust Litigation, 161 F.R.D. 411, 1995 U.S. Dist. LEXIS 11757, 1995 WL 307567 (mnd 1995).

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