IN RE: TITANIUM DIOXIDE ANTITRUST LITIGATION · PDF filein re: titanium dioxide antitrust...

UNITED STATES DISTRICT COURT DISTRICT OF MARYLAND

(Northern Division)

IN RE: TITANIUM DIOXIDE ANTITRUST LITIGATION

Master Docket No. 10–CV–00318(RDB)

THIS DOCUMENT RELATES TO: All Actions

PLAINTIFFS’ MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR PRELIMINARY APPROVAL

OF CLASS ACTION SETTLEMENT WITH DEFENDANT E. I. DU PONT DE NEMOURS AND COMPANY

Case 1:10-cv-00318-RDB Document 496-1 Filed 08/12/13 of 22

- i -

TABLE OF CONTENTS

I. INTRODUCTION .............................................................................................................. 1

II. CASE HISTORY ................................................................................................................ 2

A. Plaintiffs’ Factual Allegations and Claims. ............................................................ 2

B. Procedural History and Negotations. ...................................................................... 2

III. SUMMARY OF SETTLEMENT TERMS ......................................................................... 4

A. The Class. ................................................................................................................ 4

B. Settlement Sum and Additional Consideration. ...................................................... 5

C. Attorneys’ Fees and Costs. ...................................................................................... 6

D. Release of All Claims.............................................................................................. 7

IV. THE PROPOSED SETTLEMENT SHOULD BE PRELIMINARY APPROVED ........... 7

A. The Requirements for Class Certifications Under Rule 23 Are Met. ..................... 8

B. The Settlement Is Fair. ............................................................................................ 8

C. The Settlement Is Adequate. ................................................................................. 11

V. USE OF SETTLEMENT FUNDS .................................................................................... 12

VI. THE PROPOSED SETTLEMENT NOTICE SHOULD BE APPROVED ...................... 13

VII. THE FINAL APPROVAL HEARING SHOULD BE SCHEDULED .............................. 16

VIII. CONCLUSION ................................................................................................................. 17


- ii -

TABLE OF AUTHORITIES

Cases Amchem Prods. Inc. v. Windsor

521 U.S. 591 (1997) .................................................................................................... 14

Burlington Industries, Inc. v. Milliken & Co. 690 F.2d 380 (4th Cir. 1982) ....................................................................................... 12

Denney v. Deutsche Bank AG 443 F.3d 253 (2d Cir. 2006) ........................................................................................ 15

Gunnells v. Healthplan Servs., Inc. 348 F.3d 417 (4th Cir. 2003) ......................................................................................... 8

In re Am. Capital S’holder Derivative Litig. No. 11-2424, 2013 U.S. Dist. LEXIS 90973 (D. Md. June 28, 2013) .......................... 7

In re Jiffy Lube Sec. Litig. 927 F.2d 155 (4th Cir. 1991) ......................................................................................... 8

In re Mid-Atlantic Toyota Antitrust Litig. 564 F. Supp. 1379 (D. Md. 1983) .............................................................................. 7, 8

In re Montgomery County Real Estate Antitrust Litig. 83 F.R.D. 305 (D. Md. 1979) .................................................................................. 8, 11

McLaurin v. Prestage Foods No. 7:09-CV-100, 2012 U.S. Dist. LEXIS 13086 (E.D.N.C. 2012) ........................... 15

Moulton v. U.S. Steel Corp. 581 F.3d 344 (6th Cir. 2009) ....................................................................................... 15

Tardiff v. Knox County 567 F. Supp. 2d 201 (D. Me. 2008) ............................................................................. 15

Statutes 15 U.S.C. § 1 ......................................................................................................................... 2, 3

Federal Rule of Civil Procedure Rule (b)(3) ..................................................................................................................... 4

Federal Rule of Civil Procedure Rule 23(a) .................................................................................................................. 4, 8

Federal Rule of Civil Procedure Rule 23(b) ...................................................................................................................... 8

Federal Rule of Civil Procedure Rule 23(e) ...................................................................................................................... 7

Federal Rule of Civil Procedure Rule 23(e)(1) ............................................................................................................... 13

Federal Rule of Civil Procedure Rule 23(e)(4) ............................................................................................................... 11


- iii -

Federal Rule of Civil Procedure Rule 23(g) .................................................................................................................... 10

OtherAuthorities 4 Newberg on Class Actions, § 8.32 (4th ed. 2002) ................................................................ 13

Manual for Complex Litigation, Fourth (2004) ............................................................ 7, 13, 14


- 1 -

I. INTRODUCTION

Plaintiffs Haley Paint Company, Isaac Industries, Inc., and East Coast Colorants LLC

(collectively, “Plaintiffs” or “Class Representatives”), individually and as representatives of the

Class certified by Order of this Court dated August 28, 2012 (the “Class”) submit this

memorandum in support of their motion for preliminary approval of the proposed settlement (the

“Settlement Agreement”) between Plaintiffs and Defendant E. I. du Pont de Nemours and

Company (“DuPont”).

Upon final approval and so long as certain other conditions are met, the Settlement

Agreement will create an all-cash fund of Seventy-Two Million Dollars ($72,000,000.00) (the

“Settlement Fund”) for the benefit of the Class. Plaintiffs and DuPont reached this agreement

through arm’s length negotiations after more than three years of litigation, including denial of

Defendants’ motion to dismiss; the granting of a motion to certify a nationwide class of direct

purchasers; the briefing and arguing of Defendants’ joint and individual summary judgment

motions; the briefing and arguing of Defendants’ motion to enforce arbitration agreements,

forum selection clauses, class action waivers, and jury trial waivers; substantial investigation;

and extensive merits and expert discovery. Plaintiffs allege that DuPont, Huntsman International

LLC, the Non-Settling Defendants1 and their co-conspirators violated Section 1 of the Sherman

Act by forming a cartel and agreeing to fix, raise, maintain and stabilize the prices of titanium

dioxide.

By this motion, Plaintiffs request that the Court: (1) grant preliminary approval of the

Settlement Agreement with DuPont at the same time that it grants preliminary approval of

1 Kronos Worldwide, Inc. and Cristal U.S.A Inc. (formerly Millennium Inorganic Chemicals) (the “Non-Settling Defendants”), together with Huntsman and DuPont, are referred to herein as the “Defendants.” Huntsman has settled with the Class and Plaintiffs filed a motion for preliminary approval of that settlement on July 29, 2013. See ECF No. 480.


- 2 -

Plaintiffs’ settlement with Huntsman; (2) approve the proposed plan of notice to the Class

regarding the settlements with both DuPont and Huntsman (collectively, “Settlements”), and

Class Counsel’s and other plaintiffs’ counsel’s motion for reimbursement of expenses from the

settlement funds to be paid by Huntsman;2 (3) set a schedule for disseminating notice to Class

members, as well as deadlines to comment on or object to the Settlements and the motion for

reimbursement of expenses; and, (4) schedule a hearing pursuant to Rule 23(e) of the Federal

Rules of Civil Procedure to determine whether the proposed Settlements are fair, reasonable and

adequate and should be finally approved and appropriate final judgments entered.

II. CASE HISTORY

A. Plaintiffs’ Factual Allegations and Claims.

This case involves antitrust claims brought under the Sherman Act, 15 U.S.C. § 1, by

entities that purchased titanium dioxide in the United States directly from Defendants or Tronox

Inc. (formerly known as Kerr-McGee) (“Tronox”). Plaintiffs’ claims arise from an alleged illegal

agreement entered into by and among the Defendants, to form a cartel and fix, raise, and stabilize

prices for titanium dioxide, causing damages to Plaintiffs and the Class in the form of artificially-

inflated prices and significant overcharges for nearly a decade. Defendants have denied those

allegations.

B. Procedural History and Negotiations.

This action was initiated by class representative Haley Paint Company on February 9,

2010, alleging a conspiracy to fix, raise, maintain and stabilize the price of titanium dioxide in

2 Class Counsel are Gold Bennett Cera & Sidener LLP, Joseph Saveri Law Firm, Inc., and Lieff, Cabraser, Heimann & Bernstein, LLP. As discussed infra, Class Counsel are deferring a motion for attorneys’ fees from the settlement funds to be paid by DuPont until after the trial of this action. Pursuant to the Settlement Agreement between Plaintiffs and DuPont, the funds to be paid by DuPont shall not be paid until after the settlement is finally approved by the Court.


- 3 -

the United States in violation of Section 1 of the Sherman Act, 15 U.S.C. § 1. See Declaration of

Solomon B. Cera in Support of Plaintiffs’ Motion for Preliminary Approval of Class Action

Settlement with Defendant E. I. du Pont de Nemours and Company (“Cera Decl.”) at ¶3. On

April 12, 2010, plaintiffs Haley Paint and Isaac Industries filed a Consolidated Amended

Complaint. ECF No. 51.

On March 29, 2011, the Court denied Defendants’ Motion to Dismiss. ECF No. 104.

Discovery commenced shortly thereafter, and formally closed on September 1, 2012. See

Scheduling Order, ECF No. 330, dated August 17, 2012. On August 28, 2012, the Court certified

a class of persons and entities who purchased titanium dioxide directly from Defendants or

Tronox during the Class Period. ECF No. 338. On January 11 2013, a Court-approved notice of

the pendency of this litigation was disseminated to all Class Members, who were given the right

to exclude themselves by February 25, 2013.

On April 18, 2013, Defendants submitted motions seeking to compel arbitration and stay

proceedings, dismiss for improper venue, strike jury trial demand, and amend the class

definition. ECF Nos. 422-428. On April 19, 2013, Defendants submitted joint and individual

Motions for Summary Judgment. ECF Nos. 429-430, 432-443. The Court heard oral argument

on these motions on June 25, 2013. ECF No. 462. Because of the settlements with Huntsman and

DuPont, all of those motions were stayed as to these defendants only, by Order of the Court

dated August 6, 2013. ECF No. 484.

On July 26, 2013, the Plaintiffs and DuPont entered into an agreement in principle

resolving all of the claims of Plaintiffs and the Class, as defined in the Court’s August 28, 2012

Order, against DuPont. ECF No. 472. The agreement was executed on August 6, 2013. See Cera

Decl., Exhibit A. As described in further detail in Section III, infra, Plaintiffs on behalf of


- 4 -

themselves and the Class agree to release all of their claims against DuPont in exchange for

$72,000,000 in cash and other valuable consideration. The Settlement represents only a partial

settlement of Plaintiffs’ claims in the litigation. Plaintiffs continue to prosecute their claims

against the Non-Settling Defendants, Kronos and Millennium, who remain jointly and severally

liable for all damages caused by the members of the alleged conspiracy.

III. SUMMARY OF SETTLEMENT TERMS

The Settlement Agreement resolves all claims of Plaintiffs and the Class, as defined in

the Court’s August 28, 2012 Order, against DuPont. The details of the Settlement are contained

in the Settlement Agreement attached as Exhibit A to the Cera Decl. accompanying this motion.

A summary is provided below.

A. The Class.

The class is defined by the Court’s August 28, 2012 Order certifying the Class pursuant to

Rule 23(a) and (b)(3) of the Federal Rules of Civil Procedure. ECF No. 338; see also Cera Decl.,

Ex. A, Settlement Agreement, ¶1.d. The Class includes all persons and entities who purchased

titanium dioxide in the United States directly from one or more Defendants or Tronox, or from

any predecessors, parents, subsidiaries, or affiliates thereof, between February 1, 2003 through

January 11, 2013 (the date of the Notice of Pendency of Class Action), except for those who

validly and timely exercised the right to exclude themselves from the certified Class (see ECF

Nos. 338, 373, 403), and except for all governmental entities, any Defendant, their alleged

coconspirators, parent companies, predecessors, subsidiaries and affiliates. ¶1.d.3

3 Unless otherwise stated, all references herein to “¶__” are to the Settlement Agreement, Cera Decl., Exhibit A.


- 5 -

B. Settlement Sum and Additional Consideration.

If the Court finally approves the settlement between DuPont and the Plaintiffs, and if

there is no reduction of the settlement amount pursuant to ¶6 of the Settlement Agreement, then

within ten (10) business days following the Effective Date (¶1.m), DuPont will pay $72,000,000

(the “Settlement Amount,” ¶1.v.) into the Settlement Fund Bank Account (the bank account to be

identified in and approved by the Court as part of the Order of Final Approval). ¶¶6,10.

The Settlement Amount may only be reduced if the Court, in the exercise of its

discretion, determines that Class Members should have a second opportunity to exclude

themselves from this litigation at this time in connection with the settlement between DuPont and

the Class. ¶6. Significantly, DuPont, Huntsman, and Plaintiffs have all agreed, as a part of their

respective settlements, that because the Class Members were recently afforded a full and fair

opportunity to exclude themselves from the Class earlier this year, it is unnecessary and

inappropriate to provide a second opt-out opportunity.4 In the event the Court finds a second opt-

out opportunity should be provided, the Settlement Agreement sets forth a procedure to reduce

the settlement amount DuPont is obligated to pay based on the size of the aggregate purchases of

any Class Members who timely and validly opt-out. ¶6a-b. DuPont and Plaintiffs have further

agreed that should the aggregate purchases of the Class Members who timely and validly opt-out

of the settlement exceed a certain threshold that has been agreed to by DuPont and Plaintiffs

4 As noted, Class members have had a full and fair opportunity to opt out of the class, the opt-out period closed only recently, and there have been no material developments germane to the opt-out decision since that time. Given that the class members affected by the settlements are the same as those who previously were given notice and provided with the opportunity to opt out – but chose not to do so – there is no need for a further opportunity to opt-out now. The rights of those class members are fully protected by their right to object to the proposed settlements.


- 6 -

within a Confidential Termination Agreement executed separately by DuPont and Plaintiffs, then

DuPont shall have the option to terminate the Settlement Agreement in its sole discretion. ¶6.c.5

The DuPont Settlement Fund will be utilized in accordance with applicable orders of the

Court for payments to Class Members; reimbursement of notice and other claims administration

costs; and payment of Court-approved incentive awards to the class representative plaintiffs,

attorneys’ fees, and reimbursement of litigation expenses.6

As additional consideration, DuPont has agreed to cooperate with Plaintiffs in the further

prosecution of their claims against the Non-Settling Defendants by providing (if required)

affidavits to establish the requisite foundation for the admission in evidence of DuPont’s

previously-produced business records at trial. ¶29.7

C. Attorneys’ Fees and Costs.

The Settlement Agreement recognizes that Class Counsel may seek attorneys’ fees and

reimbursement of expenses incurred in the prosecution of this litigation. ¶7.g. In accordance with

the Settlement Agreement, Plaintiffs will look solely to the Settlement Fund for satisfaction of

such fees and costs. ¶23. Class Counsel will seek an appropriate portion of the Settlement Fund

for the payment of attorneys’ fees and reimbursement of expenses incurred during the

prosecution of this action at a later time, as discussed more fully in Section VI, infra.

5 The Confidential Termination Agreement will be submitted to the Court, if requested, for in camera review. ¶6.c. 6 As explained infra, in light of the impending trial, Plaintiffs will not file motions for the distribution of settlement funds (and approval of a plan of allocation of the funds), payment of incentive awards, and attorneys’ fees until a later time. 7 Should the Non-Settling Defendants refuse to stipulate to the admissibility of certain DuPont business records, Plaintiffs will obtain affidavits from DuPont consistent with the cooperation provisions of the Settlement Agreement.


- 7 -

D. Release of All Claims.

In exchange for DuPont’s monetary and cooperation consideration, upon entry of a final

judgment approving the proposed Settlement, Plaintiffs and the Class will release DuPont from

any and all claims related to any of the alleged conduct giving rise to this litigation. ¶13.

IV. THE PROPOSED SETTLEMENT SHOULD BE PRELIMINARY APPROVED

The settlement of a class action lawsuit requires approval of the Court. Fed. R. Civ. P.

23(e). The class action approval process generally involves three distinct steps: (a) preliminary

approval of the proposed settlement; (b) dissemination of notice of the settlement to the class;

and (c) a final fairness hearing. Manual for Complex Litigation, Fourth § 21.632—21.634

(2004). At the “preliminary fairness” hearing, the court makes “a preliminary determination on

the fairness, reasonableness, and adequacy of the settlement terms” and “direct[s] the preparation

of notice of the certification, proposed settlement, and date of the final fairness hearing.” Id.

§ 21.632. It is at the final “fairness” hearing where the court ultimately determines whether the

proposed settlement is “fair, reasonable, and adequate” for all class members. Id. § 21.634.

Rather than a “definitive proceeding on the fairness of the proposed settlement,” the goal

of the preliminary hearing is to determine “that there is, in effect, probable cause to submit the

proposal to members of the class and to hold a full-scale hearing on its fairness, at which all

interested parties will have an opportunity to be heard and after which a formal finding on the

fairness of the proposal will be made.” In re Mid-Atlantic Toyota Antitrust Litig., 564 F. Supp.

1379 (D. Md. 1983) (internal citation omitted). Put another way, the court’s inquiry is whether

the settlement “is sufficiently within the range of reasonableness so that notice of the Settlement

should be given.” In re Am. Capital S’holder Derivative Litig., No. 11-2424, 2013 U.S. Dist.

LEXIS 90973 (D. Md. June 28, 2013) (citation omitted).


- 8 -

Preliminary approval review entails many factors that “may be broken down into two

major categories: those which go to ‘fairness’ and those which go to ‘adequacy’ of a settlement.”

In re Montgomery County Real Estate Antitrust Litig., 83 F.R.D. 305, 315 (D. Md. 1979).

A. The Requirements for Class Certifications Under Rule 23 Are Met.

Class certification requires satisfaction of all four elements of Rule 23(a) and at least one

of the requirements of Rule 23(b). Gunnells v. Healthplan Servs., Inc., 348 F.3d 417, 423 (4th

Cir. 2003). This Court granted class certification in its order dated August 28, 2012, finding that

all requirements under Rule 23(a) were met, that questions of law and fact common to the Class

predominate over individual questions, and that a class action is a superior method of

adjudication to individual actions.8 ECF No. 338; see also Fed. R. Civ. P. 23(b). The settlement is

made on behalf of this Class and is consistent with the above order and the January 11, 2013

Order Disseminating Class Notice. See ECF Nos. 338 and 373. In accordance with that Order,

notice to the Class was given and the time to opt out has passed. Only eleven (11) entities opted-

out (see ECF No. 403), and they are excluded from the settlement. ¶1.d.

B. The Settlement Is Fair.

The purpose of the “fairness” inquiry is to protect against collusion among the parties and

ensure that the settlement was reached through arm’s length negotiating. In re Montgomery

County Real Estate Antitrust Litig., 83 F.R.D. at 315; see also In re Jiffy Lube Sec. Litig., 927

F.2d 155, 159 (4th Cir. 1991); In re Mid-Atlantic Toyota Antitrust Litig., 564 F. Supp. at 1383. A

court considering the fairness of a settlement thus considers the following factors: the posture of

the case at the time settlement is proposed; the extent of discovery that has been conducted; the

circumstances surrounding the negotiations; and the experience of counsel. Id. The Settlement

8 The Fourth Circuit denied review of that order on November 14, 2012.


- 9 -

here is the product of arm’s-length negotiations between attorneys who are highly experienced in

complex antitrust cases, and who are well informed about the facts and legal issues of this case.

There were numerous settlement discussions which occurred following the hearing on

summary judgment. Cera Decl., ¶6. The parties’ positions were fully informed based on the

evidentiary record upon which the claims at issue are based, which includes over one million

documents, detailed analysis by economists and other experts, more than seventy-five (75)

depositions of percipient and expert witnesses, and extensive law and motion practice. Id. at ¶7.

Settlement negotiations were extensive, involving many written, telephone, and email

communications. Id. ¶6. On July 26, 2013, Plaintiffs and DuPont reached an agreement in

principle to settle the case, and so informed the Court. Id. See also ECF No. 472. Over the course

of the following ten days, the parties drafted and negotiated the detailed terms of the Settlement

Agreement (Cera Decl., Exhibit A). As with the negotiations that produced the agreement to

settle, there were hard fought negotiations between Plaintiffs and DuPont regarding the

documentation of the Settlement Agreement and its terms. Id. Competing drafts were exchanged

before the parties ultimately came to final agreement on August 5, 2013, and executed the

settlement on August 6, 2013. Id. Based on the foregoing, the Settlement is entitled to a

presumption of fairness.

Another factor weighing in favor of a fairness finding is whether sufficient investigation

and discovery have occurred permitting counsel and the court to meaningfully evaluate the

merits of the settlement, and reasonably conclude that it does, in light of the facts, risks and the

status of the litigation. As noted above and in the Cera Declaration, this case was investigated

beginning in September 2008 and litigated since February 2010. Cera Decl., ¶¶2,7. In that time

period, Plaintiffs have engaged in substantial discovery and motion practice, and are in the midst


- 10 -

of preparing for a trial scheduled to begin on September 9, 2013. Id. at ¶7. Plaintiffs propounded

several rounds of interrogatories and document production requests, resulting in the production

of over one million documents from all Defendants and numerous third parties. Id. Over seventy-

five witnesses have been deposed. Id. Plaintiffs have retained and worked with a number of

experts concerning the issues of liability and damages. Id. Trial is set to begin on September 9,

2013. The parties fully briefed summary judgment motions. The Court conducted an all-day

hearing on those motions on June 25, 2013. ECF No. 462. The motions are currently under

submission, and the settlement with DuPont was reached prior to the Court’s ruling on them,

reflecting the risk to each side of an adverse ruling. Because the parties have engaged in

significant discovery efforts and fully briefed and argued dispositive motions, the record has

been sufficiently developed to allow the parties and the Court to intelligently evaluate the

fairness of the Settlement.

Also weighing in favor of preliminary approval is Class Counsel’s experience and

success in similar class actions. As this Court noted in appointing Class Counsel pursuant to

Rule 23(g), Class Counsel have worked on complex cases for decades, and they have extensive

expertise and experience in complex, multi-party business litigation, especially in antitrust,

securities fraud, consumer protection, and other class action cases. Cera Decl., ¶2. Class Counsel

also possess a track record of success in similar cases, reaching settlements that have provided

substantial benefits to numerous classes of consumers. Id. Drawing from these experiences,

Class Counsel entered into the Settlement, because they believe that it is a fair outcome that is in

the best interests of the Class.


- 11 -

C. The Settlement Is Adequate.

As for the “adequacy” prong, the court must “weigh the likelihood of the plaintiffs’

recovery on the merits against the amount offered in settlement. . . . It is not, of course, necessary

or desirable to try the case to determine whether a settlement is adequate, since the very purpose

of the settlement is to avoid the trial of sharply disputed issues and to dispense with wasteful

litigation.” In re Montgomery County Real Estate Antitrust Litig., 83 F.R.D. at 315-16 (internal

citations omitted). In making this determination, the court considers the following factors: the

relative strength of the plaintiffs’ case on the merits; the existence of any difficulties of proof or

strong defenses the plaintiffs are likely to encounter if the case goes to trial; the anticipated

duration and expense of additional litigation; the solvency of the defendants and the likelihood of

recovering on a litigated judgment; and the degree of opposition to the settlement. Id. at 316

(citations omitted).

Each element of the Settlement was negotiated extensively by experienced counsel who

have worked intimately on this case for more than three years and understand the risks and

potential upsides of the litigation. Cera Decl., ¶7. Under the proposed Settlement, Plaintiffs and

DuPont have agreed that no additional opt-out opportunity is necessary or appropriate given that

notice was disseminated earlier this year and the date to request exclusion, February 25, 2013,

has passed. Rule 23(e)(4) leaves it to the Court’s discretion to determine whether an additional

opportunity to opt out should be provided in the situation present here. The settling parties agree

that the Court should not order a second opt-out. The prior, recent notice sent to the Class

members informed them of all pertinent details regarding the case, including that they would be

bound by any settlements or judgments if they chose not to exclude themselves. This occurred

quite recently, as the exclusion deadline was February 25, 2013. Several Class members availed


- 12 -

themselves of their right to request exclusion at that time. The vast majority of Class members

chose to remain in the case. Class members who previously remained in the Class should remain

bound by that decision. If there is no second opt-out opportunity and the settlement is finally

approved, DuPont will pay $72,000,000 into a Settlement Fund that will provide cash benefits to

the Class. Moreover, notwithstanding the settlement, the Non-Settling Defendants, Kronos and

Millennium, remain jointly and severally liable for all of the damages caused by the alleged

conspiracy to the members of the Class. Burlington Industries, Inc. v. Milliken & Co., 690 F.2d

380, 391 (4th Cir. 1982). In entering into the Settlement with DuPont, Plaintiffs give up no

amount of their classwide claim for damages against the Non-Settling Defendants.

As noted above, Class Counsel have litigated this case for years and have developed a

deep understanding of the factual record, as well as the relative strength and weaknesses of the

case. Cera Decl., ¶7. While Plaintiffs believe their claims are meritorious, DuPont asserted many

viable defenses and has moved the court to enter summary judgment, which could potentially

result in Plaintiffs and the Class receiving no compensation whatsoever for the alleged

wrongdoing. Class Counsel do not take these risks lightly. In light of the procedural posture of

the case, and the relative strengths and weaknesses of the claims and defenses asserted, the

proposed Settlement between Plaintiffs and DuPont satisfies the adequacy requirement for

preliminary approval.

In sum, the Settlement Agreement is fair, reasonable, and adequate and in the best

interests of the Class.

V. USE OF SETTLEMENT FUNDS

As noted above, the Settlement Agreement specifies that Class Counsel may seek

attorneys’ fees and reimbursement of expenses, which are to be paid solely from the Settlement


- 13 -

Fund. ¶23. Given the impending trial, Class Counsel do not at this time intend to seek payment

of attorneys’ fees, and believe motions regarding distribution of the Settlement Fund to Class

Members and for attorneys’ fees should be deferred until after the trial. Deferring distribution of

settlement proceeds to class members in the case of a partial settlement is common. Manual for

Complex Litigation, Fourth § 21.651 (2004). Piecemeal distributions are expensive, time-

consuming, and have the potential to confuse Class members. This is particularly true here

considering that Defendants’ summary judgment motions are currently pending and trial begins

in less than one month.9

VI. THE PROPOSED SETTLEMENT NOTICE SHOULD BE APPROVED

Plaintiffs request that the Court approve the forms of notice to Class Members of the

DuPont Settlement10 as well as the proposal for dissemination of the Notice to Class Members.

Should the Court grant preliminary approval, it “must direct notice in a reasonable manner to all

class members who would be bound by the proposal.” Fed. R. Civ. P. 23(e)(1). Notice of a

proposed settlement must inform class members of the following: (1) the nature of the pending

litigation; (2) the general terms of the proposed settlement; (3) that complete information is

available from the court files; and (4) that any class member may appear and be heard at the

fairness hearing. See 4 Newberg on Class Actions, § 8.32 (4th ed. 2002) (“Newberg”).

The form of notice is “adequate if it may be understood by the average class member.”

Newberg, § 11.53. Notice to the class must be “the best notice practicable under the

circumstances including individual notice to all members who can be identified through

9 No portion of the Settlement Fund will be distributed absent an order of this Court. If there is to be a distribution from the Settlement Fund to the Class, a claim form will be requested from Class Members at a later time. 10 A single combined notice of the DuPont and Huntsman settlements is now proposed given that both settlements were recently entered into on behalf of the same Class.


- 14 -

reasonable effort.” Amchem Prods. Inc. v. Windsor, 521 U.S. 591, 617 (1997). Where individual

names or addresses cannot be obtained through reasonable efforts, the court may approve

alternative techniques—such as publication and/or internet notice—for providing the best

practicable notice under the circumstances. Manual for Complex Litigation, Fourth § 21.311

(2004).

The proposed notice plan is the same as the plan the Court approved following

certification of the Class, including direct mail notice to known Class Members. See ECF No.

373. It is the same as the plan recently submitted to the Court in connection with the Huntsman

settlement. See ECF No. 480-1. Plaintiffs propose providing notice to the Class of both the

Huntsman and DuPont Settlements at the same time and, accordingly, the proposed notices being

submitted to the Court reflect details of both settlements. These proposed notices of the

Settlements are attached to the Cera Decl. as Exhibit B (detailed notice) and Exhibit C (summary

notice). If the Court preliminarily approves the DuPont and Huntsman Settlements, consistent

with notices to the Class of certification of the litigation Class disseminated in January 2013, a

detailed notice of the Settlements (Cera Decl., Ex. B) will be sent within fifteen (15) calendar

days of the Court’s order preliminarily approving the Settlements via first-class regular U.S. Mail

to all Class members reasonably identifiable.

In addition, the Claims Administrator previously approved by this Court, Gilardi & Co.,

LLC (“Gilardi”), maintains a website that informs Class members and the public about this case,

www.tio2antitrustlitigation.com. Gilardi will continue to maintain this website, which provides

notices (both summary and detailed notices), answers to “Frequently Asked Questions,” and

other pertinent information related to this litigation. If the Settlement with DuPont is

preliminarily approved, information about it, including both the summary and detailed notices


- 15 -

accompanying the Cera Declaration as Exhibits B and C, will be provided on the website. If

requested by a Class member, the Claims Administrator will mail the notices of the Settlements

to that Class member.

Also, consistent with the prior notice of certification of the Class, Plaintiffs propose that

(in addition to the direct mailing) the Claims Administrator publish a summary notice (Cera

Decl., Ex. C), as soon as practicable, once in The Wall Street Journal; once in the PCI Magazine

(also known as Paint & Coatings Industry Magazine); and once in the ICIS Chemical Business

magazine.

The proposed notice of the Settlements provide a brief explanation of the case; the terms

of the proposed Settlements; pursuant to the settlement with Huntsman, the amount Class

Counsel may seek for reimbursement of litigation expenses at this time from the settlement funds

to be paid by Huntsman; the date, time, and place of the final approval hearing; and the

procedures for Class members to follow in submitting comments on and objections to the

Settlements, and in arranging to appear at the final approval hearing concerning the Settlements

in order to state objections, if any. As discussed supra, the notices do not provide the opportunity

for Class members to opt out of the Class a second time, because Class members previously

received notice of such an opportunity earlier this year, and the time to opt out (February 25,

2013) has passed. See McLaurin v. Prestage Foods, No. 7:09-CV-100, 2012 U.S. Dist. LEXIS

13086, at *2, n.1 (E.D.N.C. 2012); Moulton v. U.S. Steel Corp., 581 F.3d 344, 354 (6th Cir.

2009); Tardiff v. Knox County, 567 F. Supp. 2d 201 (D. Me. 2008); Denney v. Deutsche Bank AG,

443 F.3d 253, 271 (2d Cir. 2006); see also ECF No. 373.


- 16 -

VII. THE FINAL APPROVAL HEARING SHOULD BE SCHEDULED

The last step in the settlement approval process is a final approval hearing. Should the

Court grant preliminary approval of the DuPont Settlement, its order should state the time, date

and place of the final approval hearing. This hearing allows the Court to hear all evidence and

the arguments necessary to determine whether the Settlement should be finally approved as fair,

adequate, and reasonable.

Plaintiffs request that the Court grant preliminary approval of the DuPont Settlement and

set the following schedule,11 which includes the final approval hearing date, settlement objection

deadlines, as well as the briefing schedules for final approval and any motions regarding

distribution and use of the Settlement Funds:

EVENT SCHEDULE

Notice of Class Action Settlements (Cera Decl., Ex. B) to Be Mailed and Posted on Internet

Within 15 days of entry of the Preliminary Approval Order

Summary Notice of Class Action Settlements (Cera Decl., Ex. C) to Be Published

To be completed 45 days prior to the Final Approval Hearing or as soon as practicable based on the publication

Receipt/Filing Deadline for Comments and Objections

30 days prior to Final Approval Hearing

Motions for Final Approval, and Reimbursement of Litigation Costs and Expenses, to Be Filed by Class Counsel, together with Affidavit of Compliance with Notice Requirements

To be filed 21 days prior to the Final Approval Hearing

Opposition(s), if any, to Motions for Final Approval and Reimbursement of Expenses


11 Plaintiffs submit that the same schedule should apply to both the DuPont and Huntsman settlements.


- 17 -

Replies in Support of Motions for Final Approval, and Reimbursement of Expenses, to Be Filed by Class Counsel, only in the event Objections to the Motions are Filed


Service/Filing of Notices of Appearance at Final Approval Hearing


Final Approval Hearing ___________, 2013 (to be scheduled by the Court)

VIII. CONCLUSION

For the above reasons, Plaintiffs respectfully request that the Court grant preliminary

approval of the Settlement with DuPont (Cera Decl., Ex. A), approve the proposed forms of

notice of the DuPont and Huntsman Settlements (Cera Decl., Ex. B and Ex. C), and set a hearing

for final approval of the Settlements. If the Court requires a hearing on preliminary approval of

the Settlements, Plaintiffs respectfully request that the hearing be conducted as soon as

reasonably practicable.

Dated: August 12, 2013 Respectfully submitted, GOLD BENNETT CERA & SIDENER LLP /s/Solomon B. Cera Solomon B. Cera (Pro hac vice) C. Andrew Dirksen (Pro hac vice) 595 Market Street, Suite 2300 San Francisco, California 94105 Telephone: (415) 777-2230 [email protected] [email protected]


- 18 -

JOSEPH SAVERI LAW FIRM, INC. Joseph R. Saveri (Pro hac vice) Kevin E. Rayhill (Pro hac vice) Ryan J. McEwan (Pro hac vice) 505 Montgomery Street, Suite 625 San Francisco, CA 94111 Telephone: (415) 500-6800 [email protected] [email protected] [email protected] LIEFF, CABRASER, HEIMANN & BERNSTEIN, LLP Brendan P. Glackin (Pro hac vice) Daniel M. Hutchinson (Pro hac vice) 275 Battery Street, 30th Floor San Francisco, California 94111-3339 Telephone: (415) 956-1000 [email protected] [email protected]

Class Counsel SHAPIRO SHER GUINOT & SANDLER Paul M. Sandler – Bar No. 00145 Robert B. Levin – Bar No. 00695 36 South Charles Street Charles Center South, Suite 2000 Baltimore, Maryland 21201 Telephone: (410) 385-0202 [email protected] [email protected]

Plaintiffs’ Liaison Counsel


IN RE: TITANIUM DIOXIDE ANTITRUST LITIGATION · PDF filein re: titanium dioxide antitrust...

Documents

Transcript of IN RE: TITANIUM DIOXIDE ANTITRUST LITIGATION · PDF filein re: titanium dioxide antitrust...