eleven (11%) percent of the dollar value of such sales to Moyer." (Id. at 4.)
Robzens' Inc., ("Robzens"), a member of the class who sold raw materials to Darling, has objected to the proposed partial settlement, asserting, inter alia, that the more than 600 class members who sold only to Darling are unfairly excluded from participating in the settlement distribution and receive no consideration in return for their full and complete release of Moyer. Although Robzens is the only member of a class comprised of more than 1,200 members to object to the proposed settlement, its challenge is indeed formidable. After careful consideration of the parties' written submissions as well as their oral arguments presented on December 28, 1994, I am constrained to concluded that the proponents of the partial settlement have not discharged their burden of establishing that, with respect to the class as a whole, the settlement is "fair, adequate and reasonable." Stoetzner v. U.S. Steel Corp., 897 F.2d 115, 118 (3rd Cir. 1990). Accordingly, the proposed settlement will not be approved and Plaintiff's "Motion for Judgment of Dismissal with Prejudice of Claims of Plaintiff Class as to Defendant Moyer Packing Co." (Dkt. Entry 348) will be denied.
On March 14, 1986, Petruzzi's, Inc., formerly known as Petruzzi's IGA Supermarkets, Inc. (hereinafter referred to as "plaintiff" or "Petruzzi's"), commenced this class action against Darling, Moyer, Standard Tallow Corp. ("Standard Tallow"), and Herman Isacs, Inc.
The complaint alleged that the defendants had conspired to allocate customers in the fat and bone rendering industry in violation of section 1 of the Sherman Act, 15 U.S.C. § 1.
Members of the putative class were butcher shops, supermarkets, restaurants, hotels, etc. that sold inedible fats, bones, suet, and meat trimmings ("raw material") to the defendants in the pertinent geographic area during calendar years 1977 through 1985.
Petruzzi's contended that although the defendants competed for new raw material accounts, they had agreed to refrain from soliciting accounts that had been secured or "loaded" by another defendant.
Following extensive discovery, the defendants moved for summary judgment. In a lengthy opinion issued on July 31, 1992, the Honorable James F. McClure of this Court granted summary judgment in favor of each of the defendants. In an opinion filed on July 13, 1993, the United States Court of Appeals for the Third Circuit reversed the Order of July 31, 1992 insofar as it had granted summary judgment to Moyer and Darling. 998 F.2d 1224. As to Standard Tallow, however, our Court of Appeals concluded that plaintiff had failed to present evidence sufficient to withstand its summary judgment motion. Id. at 1241. On November 29, 1993, the Supreme Court denied the Petition for Writ of Certiorari filed on behalf of Moyer and Darling. U.S. , 114 S. Ct. 554 (1993).
On remand, plaintiff was authorized to provide notice to members of a class certified under Federal Rule of Civil Procedure 23(b)(3).
The notice approved by Order dated January 12, 1994 informed members of the class of their right to "opt out" of the class. Of the approximately 1,250 class members, only 21 elected to be excluded from the class. According to the representations of counsel, approximately 50% of the class members did not sell raw materials to Moyer during the relevant period.
On March 2, 1994, this case was reassigned to me. Trial was scheduled for October, 1994. During the intervening period the parties were to complete expert witness discovery and file motions in limine.
A court-conducted settlement conference was convened on June 6, 1994. Negotiations between plaintiff and Moyer continued after that date. In September, Plaintiff and Moyer indicated that a settlement between them was likely. The final Settlement Agreement was executed by counsel for Plaintiff and Moyer on September 29, 1994.
In pertinent part, the Settlement Agreement provides:
a. Moyer will make up to $ 2 million in premium certificates available for the benefit of the plaintiff and the plaintiff class. Premium certificates may be claimed and redeemed as follows:
(1) Certificates may be claimed by class members based on the dollar value of their sales of raw materials to Moyer within the geographic area in up to five of the nine calendar years 1977 through 1985, for eleven (11%) percent of the dollar value of such sales to Moyer. Verification of all claims shall be furnished by each class member upon request.