ALLEN v. DAIRY FARMERS OF AMERICA, INC.

Case No. 5:09-cv-230.

ALICE H. ALLEN, LAURANCE E. ALLEN, d/b/a Al-lens Farm, GARRET SITTS, RALPH SITTS, JONATHAN HAAR, CLAUDIA HAAR, RICHARD SWANTAK, PETER SOUTHWAY, MARILYN SOUTHWAY, REYNARD HUNT, ROBERT FULPER, STEPHEN H. TAYLOR, and DARREL J. AUBERTINE, on behalf of themselves and all others similarly situated, Plaintiffs, v. DAIRY FARMERS OF AMERICA, INC. and DAIRY MARKETING SERVICES, LLC, Defendants.

United States District Court, D. Vermont.https://leagle.com/images/logo.png

February 8, 2016.

Attorney(s) appearing for the Case

Alice H. Allen, Plaintiff, represented by Andrew D. Manitsky, Esq. , Lynn, Lynn, Blackman & Manitsky, P.C., Brent W. Johnson, Esq. , Cohen Milstein Sellers & Toll PLLC, Danyll W. Foix, Esq. , Baker & Hostetler LLP, Emily J. Joselson, Esq. , Langrock Sperry & Wool, LLP, Gregory J. Commins, Jr. , Baker & Hostetler LLP, Kit A. Pierson , Cohen Milstein Sellers & Toll PLLC, Lisa B. Shelkrot, Esq. , Langrock Sperry & Wool, LLP & Robert G. Abrams, Esq. , Baker & Hostetler LLP.

Alice H. Allen, Plaintiff, represented by Robert J. Brookhiser, Esq., Baker & Hostetler LLP & Terry L. Sullivan, Esq. , Baker & Hostetler LLP.

Laurance E. Allen, Plaintiff, represented by Andrew D. Manitsky, Esq. , Lynn, Lynn, Blackman & Manitsky, P.C., Brent W. Johnson, Esq. , Cohen Milstein Sellers & Toll PLLC, Danyll W. Foix, Esq. , Baker & Hostetler LLP, Emily J. Joselson, Esq. , Langrock Sperry & Wool, LLP, Gregory J. Commins, Jr. , Baker & Hostetler LLP, Kit A. Pierson , Cohen Milstein Sellers & Toll PLLC, Lisa B. Shelkrot, Esq. , Langrock Sperry & Wool, LLP & Robert G. Abrams, Esq. , Baker & Hostetler LLP.

Laurance E. Allen, Plaintiff, represented by Robert J. Brookhiser, Esq., Baker & Hostetler LLP & Terry L. Sullivan, Esq. , Baker & Hostetler LLP.

Garret Sitts, Plaintiff, represented by Andrew D. Manitsky, Esq. , Lynn, Lynn, Blackman & Manitsky, P.C., Brent W. Johnson, Esq. , Cohen Milstein Sellers & Toll PLLC, Danyll W. Foix, Esq. , Baker & Hostetler LLP, Emily J. Joselson, Esq. , Langrock Sperry & Wool, LLP, Gregory J. Commins, Jr. , Baker & Hostetler LLP, Kit A. Pierson , Cohen Milstein Sellers & Toll PLLC, Lisa B. Shelkrot, Esq. , Langrock Sperry & Wool, LLP & Robert G. Abrams, Esq. , Baker & Hostetler LLP.

Garret Sitts, Plaintiff, represented by Robert J. Brookhiser, Esq., Baker & Hostetler LLP & Terry L. Sullivan, Esq. , Baker & Hostetler LLP.

Ralph Sitts, Plaintiff, represented by Andrew D. Manitsky, Esq. , Lynn, Lynn, Blackman & Manitsky, P.C., Brent W. Johnson, Esq. , Cohen Milstein Sellers & Toll PLLC, Danyll W. Foix, Esq. , Baker & Hostetler LLP, Emily J. Joselson, Esq. , Langrock Sperry & Wool, LLP, Gregory J. Commins, Jr. , Baker & Hostetler LLP, Kit A. Pierson , Cohen Milstein Sellers & Toll PLLC, Lisa B. Shelkrot, Esq. , Langrock Sperry & Wool, LLP & Robert G. Abrams, Esq. , Baker & Hostetler LLP.

Ralph Sitts, Plaintiff, represented by Robert J. Brookhiser, Esq., Baker & Hostetler LLP & Terry L. Sullivan, Esq. , Baker & Hostetler LLP.

Jonathan Haar, Plaintiff, represented by Andrew D. Manitsky, Esq. , Lynn, Lynn, Blackman & Manitsky, P.C., Benjamin D. Brown, Esq. , Cohen Milstein Sellers & Toll PLLC & Brent W. Johnson, Esq. , Cohen Milstein Sellers & Toll PLLC.

Jonathan Haar, Plaintiff, represented by Daniel A. Small, Esq., Cohen Milstein Sellers & Toll PLLC & David A. Balto, Esq. , The Law Offices of David A. Balto.

Jonathan Haar, Plaintiff, represented by Emmy L. Levens, Esq., Cohen Milstein Sellers & Toll PLLC, George F. Farah, Esq. , Cohen Milstein Sellers & Toll PLLC & Kit A. Pierson , Cohen Milstein Sellers & Toll PLLC.

Claudia Haar, Plaintiff, represented by Andrew D. Manitsky, Esq. , Lynn, Lynn, Blackman & Manitsky, P.C., Benjamin D. Brown, Esq. , Cohen Milstein Sellers & Toll PLLC & Brent W. Johnson, Esq. , Cohen Milstein Sellers & Toll PLLC.

Claudia Haar, Plaintiff, represented by Daniel A. Small, Esq., Cohen Milstein Sellers & Toll PLLC & David A. Balto, Esq. , The Law Offices of David A. Balto.

Claudia Haar, Plaintiff, represented by Emmy L. Levens, Esq., Cohen Milstein Sellers & Toll PLLC & George F. Farah, Esq. , Cohen Milstein Sellers & Toll PLLC.

Claudia Haar, on behalf of herself and all others similarly situated, Plaintiff, represented by Kit A. Pierson , Cohen Milstein Sellers & Toll PLLC.

Richard Swantak, Plaintiff, represented by Andrew D. Manitsky, Esq. , Lynn, Lynn, Blackman & Manitsky, P.C., Benjamin D. Brown, Esq. , Cohen Milstein Sellers & Toll PLLC, Brent W. Johnson, Esq. , Cohen Milstein Sellers & Toll PLLC, Danyll W. Foix, Esq. , Baker & Hostetler LLP & David A. Balto, Esq. , The Law Offices of David A. Balto.

Richard Swantak, Plaintiff, represented by Emmy L. Levens, Esq., Cohen Milstein Sellers & Toll PLLC & Kit A. Pierson , Cohen Milstein Sellers & Toll PLLC.

Peter Southway, Plaintiff, represented by Andrew D. Manitsky, Esq. , Lynn, Lynn, Blackman & Manitsky, P.C., Benjamin D. Brown, Esq. , Cohen Milstein Sellers & Toll PLLC & Brent W. Johnson, Esq. , Cohen Milstein Sellers & Toll PLLC.

Peter Southway, Plaintiff, represented by Daniel A. Small, Esq., Cohen Milstein Sellers & Toll PLLC & David A. Balto, Esq. , The Law Offices of David A. Balto.

Peter Southway, Plaintiff, represented by Emmy L. Levens, Esq., Cohen Milstein Sellers & Toll PLLC, George F. Farah, Esq. , Cohen Milstein Sellers & Toll PLLC & Kit A. Pierson , Cohen Milstein Sellers & Toll PLLC.

Marilyn Southway, Plaintiff, represented by Andrew D. Manitsky, Esq. , Lynn, Lynn, Blackman & Manitsky, P.C., Benjamin D. Brown, Esq. , Cohen Milstein Sellers & Toll PLLC & Brent W. Johnson, Esq. , Cohen Milstein Sellers & Toll PLLC.

Marilyn Southway, Plaintiff, represented by Daniel A. Small, Esq., Cohen Milstein Sellers & Toll PLLC & David A. Balto, Esq. , The Law Offices of David A. Balto.

Marilyn Southway, Plaintiff, represented by Emmy L. Levens, Esq., Cohen Milstein Sellers & Toll PLLC, George F. Farah, Esq. , Cohen Milstein Sellers & Toll PLLC & Kit A. Pierson , Cohen Milstein Sellers & Toll PLLC.

Reynard Hunt, Plaintiff, represented by Andrew D. Manitsky, Esq. , Lynn, Lynn, Blackman & Manitsky, P.C., Benjamin D. Brown, Esq. , Cohen Milstein Sellers & Toll PLLC & Brent W. Johnson, Esq. , Cohen Milstein Sellers & Toll PLLC.

Reynard Hunt, Plaintiff, represented by Daniel A. Small, Esq., Cohen Milstein Sellers & Toll PLLC & David A. Balto, Esq. , The Law Offices of David A. Balto.

Reynard Hunt, Plaintiff, represented by Emmy L. Levens, Esq., Cohen Milstein Sellers & Toll PLLC, George F. Farah, Esq. , Cohen Milstein Sellers & Toll PLLC & Kit A. Pierson , Cohen Milstein Sellers & Toll PLLC.

Robert Fulper, Plaintiff, represented by Andrew D. Manitsky, Esq. , Lynn, Lynn, Blackman & Manitsky, P.C., Benjamin D. Brown, Esq. , Cohen Milstein Sellers & Toll PLLC & Brent W. Johnson, Esq. , Cohen Milstein Sellers & Toll PLLC.

Robert Fulper, Plaintiff, represented by Daniel A. Small, Esq., Cohen Milstein Sellers & Toll PLLC & David A. Balto, Esq. , The Law Offices of David A. Balto.

Robert Fulper, Plaintiff, represented by Emmy L. Levens, Esq., Cohen Milstein Sellers & Toll PLLC, George F. Farah, Esq. , Cohen Milstein Sellers & Toll PLLC & Kit A. Pierson , Cohen Milstein Sellers & Toll PLLC.

Stephen H. Taylor, Intervenor Plaintiff, represented by Brent W. Johnson, Esq. , Cohen Milstein Sellers & Toll PLLC, Daniel J. Smith , Northeast Dairy Compact Commission & Richard T. Cassidy, Esq. , Hoff Curtis.

Darrel J. Aubertine, Intervenor Plaintiff, represented by Brent W. Johnson, Esq. , Cohen Milstein Sellers & Toll PLLC, Daniel J. Smith , Northeast Dairy Compact Commission & Richard T. Cassidy, Esq. , Hoff Curtis.

Dairy Farmers of America, Inc., Defendant, represented by Amber L. McDonald, Esq, Baker & Miller PLLC.

Dairy Farmers of America, Inc., Defendant, represented by Carl R. Metz, Esq. , Williams & Connolly LLP, Ian P. Carleton, Esq. , Sheehey Furlong & Behm P.C., Jonathan B. Pitt, Esq. , Williams & Connolly LLP, Kevin Hardy, Esq. , Williams & Connolly LLP, Lauren Collogan, Esq. , Williams & Connolly LLP, R. Jeffrey Behm, Esq. , Sheehey Furlong & Behm P.C., Steven R. Kuney, Esq. , Williams & Connolly LLP & W. Todd Miller, Esq. , Baker & Miller PLLC.

Dairy Marketing Services, LLC, Defendant, represented by Amber L. McDonald, Esq, Baker & Miller PLLC.

Dairy Marketing Services, LLC, Defendant, represented by Carl R. Metz, Esq. , Williams & Connolly LLP, Ian P. Carleton, Esq. , Sheehey Furlong & Behm P.C., Jonathan B. Pitt, Esq. , Williams & Connolly LLP, Kevin Hardy, Esq. , Williams & Connolly LLP, Lauren Collogan, Esq. , Williams & Connolly LLP, R. Jeffrey Behm, Esq. , Sheehey Furlong & Behm P.C., Steven R. Kuney, Esq. , Williams & Connolly LLP & W. Todd Miller, Esq. , Baker & Miller PLLC.

Vermont Attorney General's Office, represented by Robert F. McDougall , Vermont Office of the Attorney General.

ORDER GRANTING DAIRY FARMER SUBCLASSES' MOTION FOR PRELIMINARY APPROVAL OF DECEMBER 2015 SETTLEMENT WITH DEFENDANTS DAIRY FARMERS OF AMERICA, INC. AND DAIRY MARKETING SERVICES, LLC

(Doc. 712)

CHRISTINA REISS, Chief District Judge.

Pending before the court is Dairy Farmer Subclasses' Motion for Preliminary Approval of December 2015 Settlement with Defendants Dairy Farmers of America, Inc. ("DFA") and Dairy Marketing Services, LLC ("DMS") (Doc. 712). The December 2015 Settlement Agreement (the "2015 Settlement Agreement"), if approved, will resolve litigation that has been pending for over six years.

This class action arises out of Plaintiffs' allegations that Defendants DFA and DMS engaged in a wide-ranging conspiracy to control the supply of raw Grade A milk in Order 1, which had the effect of suppressing certain premiums paid to dairy farmers for their milk.1 The court has certified a class consisting of all dairy farmers, whether individuals, entities, or members of cooperatives, who produced and pooled raw Grade A milk in Order 1 during any time from January 1, 2002 to the present. This class is comprised of two certified Subclasses.2 After an adjudication of Defendants' motion for summary judgment, which the court granted in part and denied in part, the parties reached a settlement agreement on July 1, 2014 (the "2014 Settlement"). On March 31, 2015, the court denied final approval of the 2014 Settlement. The parties subsequently continued negotiations, which have resulted in the 2015 Settlement Agreement now before the court.

In determining whether to grant preliminary approval, the court starts with the proposition that "there is an overriding public interest in settling and quieting litigation, and this is particularly true in class actions." In re Prudential Sec. Inc. Ltd. P'ships Litig., 163 F.R.D. 200, 209 (S.D.N.Y. 1995). Preliminary approval is the first step in a multi-step process during which the 2015 Settlement Agreement will be scrutinized by both the court and class members. See Fed. R. Civ. P. 23(e). "Preliminary approval of a class action settlement, in contrast to final approval, `is at most a determination that there is what might be termed `probable cause' to submit the proposal to class, members and hold a full-scale hearing as to its fairness.'" Menkes v. Stolt-Nielsen S.A., 270 F.R.D. 80, 101 (D. Conn. 2010) (quoting In re Traffic Exec. Ass'n-E. R.R.s, 627 F.2d 631, 634 (2d Cir. 1980)). After granting preliminary approval, the court may still reject a settlement in the event it determines that the settlement is not "fair, reasonable, and adequate." Fed. R. Civ. P. 23(e)(2).

For purposes of preliminary approval, the court finds that the 2015 Settlement Agreement was reached as a result of non-collusive, arms-length negotiations that involved experienced attorneys and thirteen Subclass Representatives, all of whom are familiar with the facts and legal theories at issue in this complex litigation. See, e.g., Davis v. Cent. Vt. Pub. Serv. Corp., 2012 WL 1202135, at *3 (D. Vt. Apr. 10, 2012) ("Preliminary approval is appropriate where it is the result of serious, informed, and non-collusive negotiations, where there are no grounds to doubt its fairness and no other obvious deficiencies[,] . . . and where the settlement appears to fall within the range of possible approval.") (internal quotation marks omitted).

The 2015 Settlement Agreement proposes injunctive relief that is more extensive than the injunctive relief proposed in the parties' 2014 Settlement. Among other things, the 2015 Settlement Agreement provides for:

• the establishment of a Farmer Ombudsperson position within DFA and DMS for five years; • the establishment of an Advisory Council position within DFA and DMS for four years; • certain safeguards for milk testing and adulterated milk testing for five years; • limits on DFA's and DMS's ability to acquire a controlling interest in DairyOne, a milk testing company, for ten years; • restrictions on the entry and renewal of full-supply agreements; • the ability for cooperatives to terminate their relationship with DFA or DMS during the next four years; • limits on DFA's and DMS's ability to terminate Subclass members' milk contracts; • the prohibition of DFA and DMS from entering into any agreement that restricts the solicitation of raw Grade A milk from farmers; • the ability of Subclass Counsel to seek, without opposition, the unsealing and release of previously confidential documents that were submitted to the court during this case; • certain required financial and management disclosures by DFA and DMS; • notice and procedure requirements if DFA decides to vote its members as a block; • a milk check review by DFA's Northeast Area Council; • the maintenance of DFA's and DMS's ongoing antitrust compliance programs; • protections against retaliation and discrimination for Subclass members; • a procedure for monitoring compliance with the 2015 Settlement Agreement; and • the opportunity for Subclass members to opt out of the 2015 Settlement Agreement, which will permit them to be excluded from the release of claims against DFA, DMS, and certain related entities, and will entitle them to pursue independent claims against DFA and DMS if they so choose.

The 2015 Settlement Agreement contemplates monetary relief in the form of a settlement payment of $50 million. Subclass Counsel has requested an attorney's fees award of approximately $16.6 million, plus expenses, to be deducted from the settlement payment. The 2015 Settlement Agreement requests incentive payments to Subclass Representatives. Subclass Counsel proposes to request up to $20,000 in incentive payments for each Subclass Representative dairy farm.

The 2015 Settlement Agreement provides for the release of certain claims. Subclass members who do not opt out will be prohibited from continuing this lawsuit against DFA or DMS and from initiating litigation that "aris[es] out of the conduct" alleged in the instant action. (Doc. 712-2 at 5, ¶ 1.16.) In contrast to 2014 Settlement, the 2015 Settlement Agreement narrows the category of "Released Parties" to "Settling Defendants, their predecessors, successors, subsidiaries, insurers, members, owners, attorneys, and any and all past and present officers, directors, employees, managing agents, and controlling persons of such entities, but not any other Defendant." Id. at 6, ¶ 1.17.

Upon consideration of the pending motion, it is hereby ORDERED as follows:

PRELIMINARY APPROVAL

1. The Motion is GRANTED, and the 2015 Settlement Agreement between the DFA/DMS and Non-DFA/DMS Subclass, and Defendants Dairy Farmers of America, Inc. and Dairy Marketing Services, LLC ("Settling Defendants") (Doc. 712-2) is PRELIMINARILY APPROVED. Final approval is subject to proper notice and a Fairness Hearing where any objections will be heard.

NOTICE AND SUMMARY NOTICE

2. The court ORDERS the following changes to the proposed Notice of Proposed Settlement ("Notice") (Doc. 712-5) and Summary Notice of Proposed Settlement ("Summary Notice") (Doc. 712-6):

a. On the second page of the Notice, (Doc. 712-5 at 3), the Notice must clarify that an application for reinstatement is not submitted to the court, and that reinstated Subclass members must submit a claim if they wish to receive payment. See Appendix to this Order at 1. b. On the seventh and eighth pages of the Notice (Doc. 712-5 at 8-9), the Notice must explain the process for opting back in to the 2015 Settlement Agreement. See Appendix to this Order at 2-3. c. On the eighth and ninth pages of the Notice, (Doc. 712-5 at 9-10), the Notice must provide that the Farmer Ombudsperson position will exist for five years, and that the Advisory Council Member position will exist for four years. See Appendix to this Order at 3-4. d. On the seventeenth, eighteenth, and nineteenth pages of the Notice, (Doc. 712-5 at 18-20), the Notice must require Subclass members to submit a signed letter bearing the case caption, their name and address, and the date when seeking to opt out, submit written objections or support, or appear at the Fairness Hearing. See Appendix to this Order at 5-7. e. The Summary Notice, (Doc. 712-6 at 2), must explain that if the 2015 Settlement Agreement is approved by the court, Subclass members who opt out will not be bound by the release of claims or precluded from initiating lawsuits against DFA, DMS, or certain related entities. See Appendix to this Order at 8.

3. With the modifications required herein, the court APPROVES the proposed form, content, and method of delivery of the Notice (Doc. 712-5) and Summary Notice (Doc. 712-6). The Notice and Summary Notice are written in plain language and clearly and conspicuously notify Subclass members of the nature of the litigation, the definition of the class certified, the class claims and issues, the contents of the 2015 Settlement Agreement, and the class members' rights to object, appear before the court, and be represented by counsel.

4. The Notice and Summary Notice advise Subclass members how they may obtain additional information, what they must do to exercise their rights, how to opt out of the 2015 Settlement Agreement, and what will happen if they do nothing. The Notice and Summary Notice also advise them of further court proceedings with regards to the 2015 Settlement Agreement, including the date, time, and location of the court's Fairness Hearing, and how they may participate in those proceedings.

5. For the foregoing reasons, the proposed Notice and Summary Notice satisfy Fed. R. Civ. P. 23 and the Due Process Clause of the United States Constitution. See, e.g., Wal-Mart Stores, Inc. v. Visa U.S.A. Inc., 396 F.3d 96, 113-14 (2d Cir. 2005) ("The standard for the adequacy of a settlement notice in a class action under either the Due Process Clause or the Federal Rules is measured by reasonableness. . . . [T]he settlement notice must fairly apprise the prospective members of the class of the terms of the proposed settlement and of the options that are open to them in connection with the proceedings. Notice is adequate if it may be understood by the average class member.") (citation and internal quotation marks omitted).

6. As soon as practicable after the date of this Order, the Notice shall be mailed by first class U.S. Mail, postage prepaid, to all potential members of the Subclasses whose identities and locations are reasonably ascertainable, which may be satisfied by sending the Notice to the addresses of potential Subclass members as maintained by the Federal Milk Market Administrator, plus any additional identified potential Subclass members. In addition, the Summary Notice shall be published as soon as practicable in at least two publications with circulations that are reasonably likely to include Subclass members. Subclass Counsel shall post the Motion, the 2015 Settlement Agreement, the Notice, and this Order on the class action website for this lawsuit maintained by the Claims Administrator.

THE FAIRNESS HEARING

7. The court will convene a hearing (the "Fairness Hearing") ninety (90) days or more after entry of this Order, on Friday, May 13, 2016 at 10:00 a.m. for the court to consider (a) whether the 2015 Settlement Agreement should be finally approved as fair, reasonable, and adequate pursuant to Fed. R. Civ. P. 23, and whether judgment should be entered dismissing the claims released in the 2015 Settlement Agreement on the merits and with prejudice; and (b) whether to approve any application by Subclass Counsel for awards of attorneys' fees, costs, and expenses, and/or for incentive awards for the Subclass Representatives. The Fairness Hearing may be continued without further notice to the Subclasses, however, notice of such continued hearing shall be made public through the court's website and docket entries in this case. Any Subclass member experiencing difficulty obtaining that information is directed to contact the clerk's office:

United States District Court for the District of Vermont 11 Elmwood Avenue, Room 506 Burlington, VT 05401 (802) 951-6301 www.vtd.uscourts.gov

EXPRESSING OBJECTIONS TO OR SUPPORT FOR THE 2015 SETTLEMENT AGREEMENT

8. Any member of the Subclass who objects to or supports the 2015 Settlement Agreement may file a letter of objection or support, and/or appear and be heard at the Fairness Hearing. To express an opinion regarding the 2015 Settlement Agreement, the Subclass member must comply with the procedures set forth below.

SPEAKING AT THE FAIRNESS HEARING

9. Any Subclass member who follows the procedure set forth herein may appear and be heard at the Fairness Hearing. Failure to comply with this procedure will mean the Subclass member will not be permitted to speak at the Fairness Hearing. A Subclass Member who wishes to be heard at the Fairness Hearing must send a letter requesting to appear at the Fairness Hearing to the clerk of the court, Subclass Counsel, and counsel for Settling Defendants at the addresses set forth in the Notice at least fourteen (14) days prior to the Fairness Hearing. The letter must comply with the following requirements:

a. It must provide the caption of this case: Allen v. Dairy Farmers of America, Inc., No. 5:09-CV-230-CR. b. It must be entitled "Notice of Intent to Appear at the Fairness Hearing." c. It must identify the Subclass Member's name, address, and telephone number. d. It must identify the topics that the Subclass member intends to discuss. e. It must include the Subclass member's signature and the date.

SUBMITTING WRITTEN OBJECTIONS OR SUPPORT FOR THE 2015 SETTLEMENT AGREEMENT

10. Any Subclass member who follows the procedure set forth herein may submit written objection or support for the 2015 Settlement Agreement. Failure to comply with this procedure may preclude the court and the parties from considering the Subclass Member's opinion. A Subclass member who wishes to submit their written opinion, whether against or in favor of the 2015 Settlement Agreement, must explain their opinion in a letter sent to the clerk of the court, Subclass Counsel, and counsel for Settling Defendants at the addresses provided in the Notice at least fourteen (14) days prior to the Fairness Hearing. The letter must comply with the following requirements:

a. It must provide the caption of this case: Allen v. Dairy Farmers of America, Inc., No. 5:09-CV-230-CR. b. It must be entitled either "Letter of Objection" or "Letter of Support." c. It must identify the Subclass Member's name, address, and telephone number. d. It must briefly explain the Subclass Member's opposition or support for the 2015 Settlement Agreement. e. It must include the Subclass member's signature and the date.

OPTING OUT OF THE 2015 SETTLEMENT AGREEMENT

11. Any member of the Subclass who did not previously opt out of a Subclass, but wishes to be excluded from the 2015 Settlement Agreement, may opt out of it by submitting a letter expressing such intent to the Claims Administrator at least twenty-one (21) days prior to the Fairness Hearing. This letter must be entitled "Opt-Out Letter." It must include the date, the caption of this case, as well as the Subclass member's name, address, and signature. It must also clearly state that the Subclass member is opting out of the 2015 Settlement Agreement, with language such as, "I am opting out of the 2015 Settlement Agreement."

OPTING BACK IN TO THE SUBCLASSES

12. Any person who timely requested exclusion from a Subclass may opt back in to that Subclass by submitting a letter indicating his or her request to be reinstated as a Subclass member for the purpose of participating in the 2015 Settlement Agreement. The letter must be sent to the Claims Administrator at the address provided in the Notice at least twenty-one (21) days prior to the Fairness Hearing. This letter must be entitled "Opt-In Letter." It must include the date, the caption of this case, as well as the Subclass member's name, address, and signature. It must also clearly state that the Subclass member is opting back in to the Subclass, with language such as, "I am opting back in to the Subclass." After applying for reinstatement, if the reinstated Subclass member seeks payment pursuant to the 2015 Settlement Agreement, they must also submit a claim form in accordance with the Submission of Claims provision herein.

SUBMISSION OF CLAIMS

13. Subclass members who timely submitted an eligible claim in relation to the 2014 Settlement with DFA and DMS, and who wish to receive payment from the 2015 Settlement Agreement, do not need to submit a new claim form. Any Subclass member who did not timely submit an eligible claim in relation to the 2014 Settlement, and who wishes to be eligible for a payment as a result of the 2015 Settlement Agreement, must file a claim no later than fourteen (14) days before the Fairness Hearing.

SUBCLASS COUNSEL'S OBLIGATIONS

14. No later than forty-five (45) days after entry of this Order, Subclass Counsel shall file any motion for attorneys' fees, reimbursement of expenses, and incentive payments for Subclass Representatives.

15. No later than seven (7) business days prior to the Fairness Hearing, Subclass Counsel shall file with the court, and serve upon counsel for Settling Defendants, affidavits or declarations of the person under whose general direction the mailing of the Notice and the publication of the Summary Notice were made, showing that mailing and publication were made in accordance with this Order. Subclass Counsel shall also identify all requests to be reinstated to either of the Subclasses in this filing.

THE SETTLEMENT FUND

16. The court APPROVES the establishment of the Settlement Fund, as set forth in Section 7 of the 2015 Settlement Agreement, as a "Qualified Settlement Fund" pursuant to Treas. Reg. § 1.468B-1. The court retains continuing jurisdiction over any issues regarding the formation or administration of the Settlement Fund. Subclass Counsel and their designees are authorized to use (i) up to $100,000 of the Settlement Fund to give notice of the 2015 Settlement Agreement to Subclass members and for settlement administration costs,3 (ii) up to $10,000 for escrow agent costs, and (iii) any amount as is required to pay taxes on income earned on the Settlement Fund, with prior notice to Settling Defendants. No other disbursements shall be made from the Settlement Fund prior to the Effective Date, as defined in the 2015 Settlement Agreement, and thereafter only upon approval and order of the court.

17. Rust Consulting, Inc. is APPOINTED as Claims Administrator for purposes of notice and administration of the 2015 Settlement Agreement. JPMorgan Chase Bank, National Association shall serve as the escrow agent in connection with the Settlement Fund described in Section 7 of the 2015 Settlement Agreement.

PROCEEDINGS ARE STAYED

18. All proceedings against Settling Defendants, except those proceedings provided for or required by the 2015 Settlement Agreement, are STAYED until further order of the court.

SO ORDERED.

APPENDIX

factor in determining whether to approve the settlement. Payments will only be made if the Court approves the settlement and after any appeals are resolved.

YOUR LEGAL RIGHTS AND OPTIONS IN THIS SETTLEMENT SUBMIT A CLAIM FORM The only way to receive a cash payment. IF YOU SUBMITTED A CLAIM IN 2014, AND WISH TO RECEIVE PAYMENT NOW, YOU DO NOT NEED TO SUBMIT ANOTHER CLAIM. EXCLUDE YOURSELF Get no payment from the settlement. This is the only option that allows (OPT OUT) you to start (or remain part of) any other lawsuit against DFA or DMS about the legal claims in this case. SUPPORT OR OBJECT Write to the Court about your opinion of the settlement. The Court will consider the reaction of the Subclass members in deciding whether to approve the settlement. GO TO A HEARING Ask to speak in Court about the fairness of the settlement. IF YOU SUBMITTED A If the settlement is approved, you will receive a cash payment and CLAIM IN 2014, give up your rights to sue DFA and DMS about the legal claims in this DO NOTHING NOW case. IF YOU DID NOT Get no payment from the settlement. Give up your rights to sue DFA SUBMIT A CLAIM IN and DMS about the legal claims in the case. 2014, DO NOTHING NOW OPT-IN TO THE If you previously asked to be excluded from the Subclass, you may SETTLEMENT now ask to be reinstated as a member of the Subclass for purposes of the settlement with DFA/DMS. To receive payment from the settlement, you must also submit a claim after you are reinstated.

WHO IS IN THE SETTLEMENT CLASS

7. How do I know If I'm part of the settlement?

If you are a member of either of the two Subclasses certified by the Court — and have not excluded yourself — then you are a part of the settlement. The Court has certified two groups or Subclasses:

DFA/DMS Member Subclass • All dairy farmers (individuals or entities) who produced and pooled raw Grade A milk in Order 1 during any time from January 1, 2002 to the present, who are members of DFA or otherwise sell milk through DMS. Non-DFA/DMS Member Subclass • All dairy farmers (individuals or entities), who produced and pooled raw Grade A milk in Order 1 during any time from January 1, 2002 to the present, and who are not members of DFA and do not sell milk through DMS.

If there are multiple owners of your dairy farm, please forward this Notice to all of the owners. If this Notice reached you at an address other than the one on the mailing label, or if your address changes, please send your correct address to the Notice Administrator at the address in Question 34.

8. Are there any exceptions to being Included?

You are not part of the settlement if you excluded yourself from the Class in this litigation.

The following persons and entities are also excluded from the Settlement: the current and former officers and directors of DFA, DMS, Dean Foods, HP Hood LLC, National Dairy Holdings, Farmland Dairies LLC, Kraft, Dairylea Cooperative, Inc., St. Albans Cooperative Creamery, Inc., Agri-Mark, Inc., Land O'Lakes, Inc., and Maryland and Virginia Milk Producers Cooperative Association, Inc. If you sold milk to or were a member of one or more of these entities, you are still eligible to participate in the lawsuit unless you were an officer or director of the entity. If you hold some other position with any of these entities, but are not an officer or director, you are still eligible to participate in this lawsuit.

9. If I previously asked to be excluded from a Subclass, can I change my mind now?

If you previously asked to be excluded from a Subclass in response to the Court's notice of class certification dated November 19, 2012, you may ask to be reinstated as part of a Subclass for purposes of the settlement with the Settling Defendants. You must deliver an application to Northeast Dairy Farmer Class Reinstatements, c/o Rust Consulting, Inc., PO Box 2958, Faribault, MN 55021-2958 so that it is postmarked no later than DATE. Your application must be entitled "Opt-In Letter." It must include your name, address, and telephone number; the name of the case; a clear statement that you are opting back in; and your signature and the date. If you are reinstated, you may be eligible for a payment from the settlement with Settling Defendants, provided you file a claim form as described below in Question 16. In evaluating whether to pursue any individual claim, you should consult your own attorney.

10. If I previously did not ask to be excluded from the Subclass, can I change my mind now?

Yes. See Questions 24-26 regarding how to exclude yourself and how exclusion affects your rights.

11. I'm still not sure If I'm Included.

If you are still not sure whether you are included in the settlement class, you can ask for free help.

For more information, visit www.NortheastDairyClass.com, or call 1-855-460-1533, or write to Northeast Dairy Farmer Settlement, c/o Rust Consulting, Inc., PO Box 2958, Faribault, MN 55021-2958.

SETTLEMENT BENEFITS

12. What does the Settlement provider

DFA and DMS have agreed to pay $50,000,000 into a Settlement Fund. After deducting attorneys' fees, plus costs, expenses, and incentive fees for the dairy farmers who brought the lawsuit (see Questions 22 and 23), the net Settlement Fund will be distributed to members of the Subclasses who file valid claims.

In addition to the $50 million Settlement Fund, DFA and DMS have agreed to change their business practices in the following ways:

• Farmer Ombudsperson. For the next five years, a Farmer Ombudsperson will be created to advocate for farmers and promote fairness within DFA and DMS.

º The Farmer Ombudsperson will listen to and investigate farmers' complaints and concerns. º The Farmer Ombudsperson will mediate disputes between farmers and DFA and DMS. º The Farmer Ombudsperson will have access to relevant records within DFA and DMS, will meet with a representative from the DFA and DMS management team, and will be allowed to attend and participate in DFA Northeast Area Council Meetings. º The Farmer Ombudsperson will report on their activities to Subclass Members every six months. º DFA/DMS is required to pay the Farmer Ombudsperson an hourly fee, not to exceed a pre-determined amount identified in the settlement.

• Advisory Council Member: For the next four years, an Advisory Council Member position will be created to advocate for farmers within DFA and DMS and promote better pay prices, net income and enhanced equity for them.

º The Advisory Council Member can request a third-party review of DFA's and DMS's financial statements to be paid for by DFA and DMS, and hire experts. He or she shall have access to all DFA Northeast Area Council and DMS books and financial records º The Advisory Council Member will be a non-voting member of DFA's Northeast Area Council, and shall be allowed to attend and participate in DFA Northeast Area Council and other key DFA meetings. º The Advisory Council Member will report on their activities to Subclass Members every six months. º DFA/DMS is required to pay the Advisory Council Member an hourly fee, not to exceed a pre-determined amount identified in the settlement.

• Milk Testing: DFA and DMS will adopt safeguards to increase fairness and transparency in milk testing.

º For the next ten years, DFA and DMS will not acquire a controlling interest in the milk testing company its farmers use, DairyOne, nor will DFA members hold a majority of seats on its board. º For the next five years, any farmer in Order 1 whose milk is tested by DairyOne and who disputes the accuracy of the test result may require a split sample procedure three times a year at no cost to the farmer and in which the dairy farmer observes the collection and sealing of a sample to be tested at two independent, certified labs selected by the farmer in addition to DairyOne. If the split sample fails to confirm the original test result within a reasonable level of error, the appropriate adjustments to the farmer's milk check will be made and information regarding the labs' differing results submitted to the Market Administrator. º Additional farmer concerns regarding milk testing accuracy may be raised with the Farmer Ombudsperson who shall attempt to mediate any disputes. º DFA/DMS shall provide the Farmer Ombudsperson with an annual report identifying any discrepancies found between milk test results at DairyOne and those from other certified laboratories.

25. If I do not exclude myself, can I sue later?

No. Unless you exclude yourself, you give up the right to sue DFA or DMS for all of the claims that this proposed settlement resolves and others that could have been asserted based on the conduct in the Complaint in this case. You must exclude yourself from the Subclass to start your own lawsuit, continue with a lawsuit, or be part of any other lawsuit against DFA or DMS relating to the "Released Claims" described in Section 1.16 of the Settlement Agreement.

26. How do I get out of the settlement?

To exclude yourself from the proposed settlement, you must send a letter by mail clearly stating the following:

• The title "Opt-Out Letter." • Your name, address, and telephone number, • The name of the case (Allen v. Dairy Farmers of America, Inc., No. 5:09-C230-CR), • A clear statement that you would like to be excluded, and • Your signature, and the date.

You must mail your request for exclusion postmarked by DATE to:

Northeast Dairy Farmer Settlement with DFA/DMS c/o Rust Consulting, Inc. PO Box 2958 Faribault, MN 55021-2958

You cannot ask to be excluded on the phone, by email, or at the website.

SUPPORTING OR OBJECTING TO THE SETTLEMENT

You may express support for or objection to the settlement, and the Court will take into account the views of Subclass Members in deciding whether to approve the settlement.

27. How do I tell the Court that I like or support the settlement?

If you are a Subclass Member, you can send a letter to the Court expressing your support of the settlement. Your letter must also include the following:

• The title "Letter of Support." • Your name, address, and telephone number, • The name of the case (Allen v. Dairy Farmers of America, Inc., No. 5:09-C230-CR), • The specific reasons you support to the settlement, and • Your signature and the date.

Your letter of support, along with any supporting material you wish to submit, must be mailed and postmarked no later than DATE, to the following four addresses:

Court Subclass Counsel Defense Counsel United States District Brent W. Johnson Steven R. Kuney, Esq. Court for the District Cohen Milstein Sellers & Toll Williams & Connolly LLP of Vermont PLLC 725 Twelfth Street, N.W. 11 Elmwood Avenue, 1100 New York Avenue, NW Washington, DC 20005 Burlington, VT 05401, Suite 500 Washington, DC 20005 Robert G. Abrams, Esq. Baker Hostetler LLP Washington Square, Suite 1100 1050 Connecticut Avenue, NW Washington, DC 20036-5304

28. How do I tell the Court that I don't like or object to the settlement?

If you are a Subclass Member, you can object to the settlement or to Subclass Counsel's requests for fees, expenses, and incentive fees for the Subclass Representatives. To object, you must send a letter saying that you object. Your letter must also include the following:

• The title "Letter of Objection." • Your name, address, and telephone number, • The name of the case (Allen v. Dairy Farmers of America, Inc., No. 5:09-C230-CR), • The specific reasons you object to the settlement, and • Your signature and the date.

Your letter of objection, along with any supporting material you wish to submit, must be mailed and postmarked no later than DATE, to the four addresses in Question 27.

29. Can I receive a payment even If I object?

Yes. You can submit a claim and receive your share of the settlement even if you object to the settlement. If you want to receive your share of the settlement (and you have not already submitted a claim for the 2014 settlement), you must submit a claim by DATE.

THE COURT'S FAIRNESS HEARING

The Court will hold a hearing to decide whether to approve the settlement and any requests for attorneys' fees, expenses, and incentive payments for the Subclass Representatives. You may attend and you may ask to speak, but you don't have to.

30. When and where will the Court decide whether to approve the settlement?

The Court will hold a hearing beginning at TIME on DATE, at the United States District Court for the District of Vermont, 11 Elmwood Avenue, Burlington, VT 05401, in Courtroom 542. The hearing may be moved to a different date or time without additional notice, so it is a good idea to check www.NortheastDairyClass.com. At this hearing, the Court will consider whether the proposed Settlement is fair, reasonable, and adequate. The Court will consider both support for and objections to the Settlement. The Court may listen to people who asked to speak at the hearing.

After the hearing, the Court will decide whether to approve the Settlement, and if so, how much to pay the attorneys for the Subclasses and whether to provide incentive payments for the Subclass Representatives. We do not know how long these decisions will take.

31. Do I have to come to the hearing?

No. Subclass Counsel will answer any questions Judge Reiss may have. But you are welcome to attend the hearing at your own expense. If you send a written letter or support or objection, you do not have to come to the Court to discuss it. As long as you mailed your letter on time, following the instructions in this Notice, the Court will consider it. You may also pay your own lawyer to attend, if you wish, but it's not necessary.

32. May I speak at the hearing?

Yes. You may ask the Court for permission to speak at the Fairness Hearing. To do so, you must send a letter saying that it is your "Notice of Intention to Appear at the Fairness Hearing." Be sure to include the following information:

• The title "Notice of Intent to Appear at the Fairness Hearing." • Your name, address, and telephone number, • The name of the case (Allen v. Dairy Farmers of America, Inc., No. 5:09-C230-CR), • The specific topics you wish to discuss regarding the settlement; and • Your signature and the date.

You must mail your Notice of Intent to Appear at the Fairness Hearing, postmarked no later than DATE, to the four addresses in Question 27.

Legal Notice

If Your Farm Produced and Pooled Grade A Milk In Federal Milk Marketing Order 1 Between 2002 and 2014

You Could Get Money from a Class Action Settlement

A $50 million Settlement with Dairy Farmers of America, Inc. ("DFA") and Dairy Marketing Services, LLC ("DMS") (the "Defendants") has been reached in a class action involving the price of raw Grade A milk that was produced and sold in the Northeast. If approved by the Court, the Settlement will provide payments to dairy farmers who submit valid claim forms and you may be eligible. The Settlement will also result in certain changes to the way DFA and DMS operate their businesses.

What is the case about?

The lawsuit claims that Defendants unlawfully agreed and conspired with themselves and others to restrict competition in, and monopolize the market for, the marketing, sale, and purchase of raw Grade A milk in Federal Milk Market Order 1 ("Northeast"). The lawsuit seeks to recover money damages from DFA and DMS for allegedly suppressing the price of raw Grade A milk received by farmers, and to stop Defendants from engaging in any conduct the Court determines has unlawfully prevented competition for the sale and purchase of raw Grade A milk. Defendants deny that they did anything wrong.

Are you included?

In general, all dairy farmers, whether individuals or entities, who produced and pooled raw Grade A milk in Order 1 at any time from January 1, 2002 to the present are included in the class action. The Court has certified two subclasses of Plaintiffs in this case: a subclass of farmers who sell their milk through DFA or DMS, and a subclass of farmers who do not sell through DFA/DMS. This Settlement provides money to both Subclasses. See the detailed notice at the website for any exceptions to Subclass Membership.

What Does the Settlement Provide?

Defendants have agreed to pay $50 million into a Settlement Fund. After deducting attorneys' fees, costs, incentive fees for the dairy farmers who brought the lawsuit, and other fees, the net Settlement Fund will be distributed to Class Members who file valid claims. The Settlement will also result in certain changes to Defendants' business practices. If the Court approves this settlement, you will not be able to sue DFA and DMS, as well certain related entities, for the claims in this suit or related claims, unless you opt out.

How to Get a Payment?

If you previously submitted a Claim in the previous 2014 DFA/DMS Settlement, and wish to receive payment here, you do NOT need to submit another Claim. If you did not submit a Claim, but wish to receive payment here, you must submit a Claim. You can get a Claim Form at www.NortheastDairyClass.com or by calling 1-855-460-1533. The deadline to submit a Claim Form is DATE. The amount of money you may receive will depend on the amount of raw Grade A milk you produced in and pooled on Order 1 from January 1, 2002 to December 12, 2014 as well as the number of valid claims that are received, and the fees, costs and expenses the Court approves. We don't know how many people will file claims; if 8,000 dairy farmers file a valid claim, the average payment per farmer is estimated to be approximately $4,000. Your payment could be more or less.

Your Other Rights

If you do nothing, you will not be able to sue DFA or DMS for any claim relating to the lawsuit. If you want to be able to sue DFA or DMS for any claim relating to this suit, you must exclude yourself from this Settlement. You may support or object to the Settlement by DATE. The Court will hold a hearing on DATE to consider whether to approve the Settlement and a request by the Class lawyers for one-third of the settlement amount ($16.66 million) in attorneys' fees, plus costs, expenses, and incentive fees of up to $20,000 for each of the dairy farms that brought the lawsuit. You do not need to attend the hearing. If you wish, you or your own lawyer may ask to appear and speak at the hearing at your own cost. You can get more information at www.NortheastDairyClass.com; by calling 1-855-460-1533; or by writing to: Northeast Dairy Farmer Class, c/o Rust Consulting, Inc., PO Box 2958, Faribault, MN 55021-2958.

FootNotes

1. At the outset of this case, Dean Foods Company was an additional defendant. However, Plaintiffs and Dean Foods Company reached a settlement, for which the court granted final approval on August 3, 2011.

2. The court has certified the following two Subclasses: 1. All dairy farmers, whether individuals or entities, who produced and pooled raw Grade A milk in Order 1 during any time from January 1, 2002 to the present, who are members of DFA or otherwise sell milk through DMS ("DFA/DMS [S]ubclass"); and 2. All dairy farmers, whether individuals or entities, who produced and pooled raw Grade A milk in Order 1 during any time from January 1, 2002 to the present, who are not members of DFA and do not otherwise sell milk through DMS ("non-DFA/DMS [S]ubclass").

(Doc. 435 at 3-4).

3. The 2015 Settlement Agreement provides that "up to $250,000 of the Settlement Fund may be used to give notice of the Settlement to Subclass members and for settlement administration costs[.]" (Doc. 712-2 at 39, ¶ 8.6.) The Proposed Order, however, provides that "up to $100,000 of the Settlement Fund [may be used] to give notice of the Settlement to Subclass members and for settlement administration costs[.]" (Doc. 712-7 at 4-5, ¶ 15.)

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