16-1944
Allen v. Dairy Farmers of America, Inc.

                       UNITED STATES COURT OF APPEALS
                           FOR THE SECOND CIRCUIT

                                     SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS
GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S
LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH
THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC
DATABASE (WITH THE NOTATION ASUMMARY ORDER@). A PARTY CITING TO A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

              At a stated term of the United States Court of Appeals for the Second
Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square,
in the City of New York, on the 18th day of April, two thousand seventeen.

PRESENT:
            PETER W. HALL,
            GERARD E. LYNCH,
            CHRISTOPHER F. DRONEY,
                  Circuit Judges.
__________________________________________

JONATHAN HAAR, on behalf of himself and all
others similarly situated, CLAUDIA HAAR, on
behalf of herself and all others similarly
situated,

                       Plaintiffs-Appellants,                16-1944

GARRET SITTS, on behalf of himself and all
others similarly situated, VINCE NEVILLE, on
behalf of himself and all others similarly
situated, DONNA HALL, on behalf of herself
and all others similarly situated, RICHARD
SWANTAK,

                       Plaintiffs,

STEPHEN H. TAYLOR, DANIEL J. AUBERTINE,

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                   Intervenor Plaintiffs,

             v.

ALICE H. ALLEN, on behalf of herself and all
others similarly situated doing business as
ALLENS FARM, LAURANCE E. ALLEN, on behalf
of himself and all others similarly situated
doing business as ALLENS FARM, ROBERT
FULPER,    PETER     SOUTHWAY,     MARILYN
SOUTHWAY, REYNARD HUNT,

                   Plaintiffs-Appellees,

                   v.

DAIRY FARMERS OF AMERICA, INC., DAIRY
MARKETING SERVICES, LLC,

                   Defendants-Appellees,

DEAN FOODS COMPANY, HP HOOD LLC,

                  Defendants.
__________________________________________


For Plaintiffs-Appellants:                  JONATHAN HARR and JOSHUA HAAR, pro se
                                            (Claudia Haar, pro se, on the brief), West
                                            Edmeston, New York.

For Plaintiffs-Appellees:                   Robert G. Abrams, Gregory J. Commins,
                                            Jr., Danyll W. Foix, Baker & Hostetler,
                                            LLP, Washington, D.C.

                                            KIT A. PIERSON, Benjamin D. Brown, Brent
                                            W. Johnson, Emmy L. Levens, Cohen
                                            Milstein    Sellers  &    Toll,   PLLC,
                                            Washington, D.C.

For Defendants-Appellees:                   STEVEN R. KUNEY, Jonathan B. Pitt, Carl
                                            R. Metz, Williams & Connolly LLP,
                                            Washington, D.C.
                                            2
                                           R. Jeffrey Behm, Ian Carleton, Sheehey
                                           Furlong & Behm, P.C., Burlington,
                                           Vermont.

                                           W. Todd Miller, Baker & Miller PLLC,
                                           Washington, D.C.


      Appeal from a judgment of the United States District Court for the District of

Vermont (Reiss, C.J.).


      UPON       DUE     CONSIDERATION,           IT    IS   HEREBY        ORDERED,

ADJUDGED, AND DECREED that the judgment of the district court is

AFFIRMED.

      Appellants Jonathan and Claudia Haar, proceeding pro se, appeal the district

court’s judgment approving a settlement in this antitrust class action. The Haars

were among the class representatives of one subclass and oppose the settlement,

arguing primarily that class counsel colluded with the defendants, that class

members have been coerced into supporting the settlement, and that the case should

proceed to trial. We assume the parties’ familiarity with the underlying facts, the

procedural history of the case, and the issues on appeal.

      A class action settlement must be “fair, reasonable, and adequate.” Fed. R.

Civ. P. 23(e)(2). We review a district court’s “factual findings relating to a settlement

agreement in a class action lawsuit under the clearly erroneous standard of review,”

we review de novo its interpretation of law, and we review its “determination that a

settlement in a class action lawsuit is fair, reasonable, and adequate” for abuse of
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discretion. McReynolds v. Richards-Cantave, 

, 800 (2d Cir. 2009)

(internal quotation marks and citation omitted).

      Having reviewed the record and relevant case law, we find no error in the

district court’s decision to approve the settlement. We therefore affirm for

substantially the reasons stated by the district court in its thorough June 7, 2016

decision.

      We have carefully considered the objections and arguments raised by the

Haars, which primarily concern the procedural fairness of the settlement. They

object to what they perceive as (1) collusion between counsel for their subclass and

counsel for defendants and (2) coercion of class members by defendants to express

support for the settlement.

      First, with respect to the claim of collusion, the objectors appear to confuse

counsel’s willingness to negotiate in good faith toward a settlement with collusion

with defendants. The district court conducted a lengthy hearing into the objectors’

challenge to their attorneys’ conduct of negotiations and found that there was no

evidence of impropriety. A district court’s findings of fact in connection with a

settlement agreement in a class action lawsuit must be accepted unless they are

clearly erroneous. 

. Upon a full review of the record, we

find no reason to disturb the district court’s finding.

      Second, with respect to the allegations of coercion, using representatives of the

defendants, to whom the farms sold their milk, to solicit the letters of support for the

settlement may well have been a questionable tactic. But even if the letters favoring

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the settlement are entirely disregarded, there was clear evidence of substantial

support for the settlement. The overwhelming majority of class members chose to

participate in the settlement by filing a claim rather than to avail themselves of the

right to opt out and continue to pursue litigation, which the settlement permitted.

See D’Amato v. Deutsche Bank, 

, 87 (2d Cir. 2011).

       In any event, the support of the class members (which we believe was clearly

evidenced here) is only one factor bearing on the approval of the settlement. The

district court’s analysis of the terms of the settlement in light of the prospects of the

litigation is of even greater significance. That analysis fully persuades us that the

settlement, which included substantial equitable remedies that were added following

the district court’s rejection of a prior settlement as insufficient, was a reasonable

compromise of the case, based on experienced counsel’s reasonable conclusion that

the benefits of the settlement, taken against the risks of proceeding to trial,

outweighed the chances of obtaining a better result by litigating the case to

conclusion. See Maywal v. Parker & Parsley Petroleum Co., 

, 1079 (2d

Cir. 1995) (emphasizing the need to “compare the terms of the compromise with the

likely rewards of litigation”).

       By their nature, settlements are compromises that do not provide either side

with all that they might have hoped to obtain in litigation. We appreciate the

passionate concern of the Haars and some other members of the class for the plight of

dairy farmers and their families, and we understand their dissatisfaction with a

settlement that does not resolve all of their grievances to their satisfaction.

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Nevertheless, the settlement was approved after careful consideration by a judge

who had presided over the litigation with energy, skill, and zeal to assure that the

interests of the members of the plaintiff classes were protected. That approval was

well within the considerable discretion accorded to district courts in reviewing class

settlements. Accordingly, we AFFIRM the judgment of the district court.


                                       FOR THE COURT:
                                       Catherine O=Hagan Wolfe, Clerk




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