United States District Court, C.D. Illinois
March 15, 2004.
IN RE: HIGH FRUCTOSE CORN SYRUP ANTITRUST LITIGATION, THIS DOCUMENT RELATES TO: ALL ACTIONS
The opinion of the court was delivered by: MICHAEL MIHM, District Judge
ORDER ON PRELIMINARY APPROVAL OF
SETTLEMENT WITH DEFENDANTS AMERICAN MAIZE-PRODUCTS
COMPANY AND CARGILL, INCORPORATED
Having considered class Plaintiffs' Motion for an Order Preliminarily
Approving the Settlement with Defendants American Maize Products
Company ("Maize") and Cargill, Incorporated ("Cargill"), the papers filed
in support, and the arguments of counsel presented during the telephonic
hearing on 3/11/04.
THE COURT HEREBY FINDS THAT:
1. The proposed settlement with Maize and Cargill falls within the
range for possible approval by the Court and warrants notice apprising
class members of the settlement and the setting of procedures for a
hearing for final approval under Rule 23(e).
2. The forms of mail and publication notice, in the form of Exhibits A
and B attached to the accompanying motion, respectively, satisfy the
requirements of due process and are hereby approved as to form.
THEREFORE, IT IS HEREBY ORDERED that the settlement agreement between
class plaintiffs and defendants Maize and Cargill is preliminarily
approved and the notices attached on Exhibit A and B are hereby approved
as to form.
IT IS FURTHER ORDERED that the schedule for notice to the members of
the class on the settlement shall be as follows:
1. Notice in the form attached as Exhibit A shall
be mailed to all class members identified on
the customer lists provided by defendants on or
before March 25, 2004;
2. Notice in the form attached as Exhibit B shall be
published twice in the national edition of The Wall
Street Journal and USA Today on or before April 5,
3. A hearing before the Court on final approval of
the settlement shall take place on May 19, 2004
at 3:00 p.m. ("Hearing Date");
4. Any motions and memoranda for final approval of
the settlement shall be filed on or before May
5. Any comments or objections to the settlement,
or requests to speak at the fairness hearing
must be received by the Clerk on or before May
TO: DIRECT PURCHASERS OF HIGH FRUCTOSE CORN SYRUP
If you bought high fructose corn syrup in the United States during
the period July 21, 1991 through June 30, 1995 directly from one or more
of the five defendant companies mentioned below.
PLEASE READ THIS NOTICE
THIS IS A NOTICE OF PARTIAL SETTLEMENT
A federal court authorized this notice. This is not a solicitation
from a lawyer.
The five defendants initially named in this
litigation were Archer Daniels Midland Company
("ADM"), A.E. Staley Manufacturing Company
("Staley"), Cargill, Incorporated ("Cargill"), CPC
International, Inc. ("CPC"), and American Maize
Products Company ("Maize"). The allegations are that
the defendants conspired to fix prices and allocate
volumes of high fructose corn syrup in the United
States in violation of Sherman Act § 1.
You were previously notified in July 1996 of the
existence of this class action, the nature of the
class' claims, and a partial settlement with
defendant CPC. You were then given the opportunity
to exclude yourself from the Class certified by the
Court on May 9, 1996. If you previously excluded
yourself from the Class, you are not a member of the
A partial settlement has now been reached with two
additional defendants, Maize and Cargill. The
settlement, if approved by the Court, will provide
$24,000,000 to pay claims of direct purchasers of
high fructose corn syrup in the United States during
the period July 21, 1991 through June 30, 1995 and
reasonable expenses of litigation and attorneys'
The litigation is continuing against ADM and
Staley, and the Court has set a trial date of
September 7, 2004.
Your legal rights are affected whether you act or
don't act. Read this notice carefully.
YOUR LEGAL RIGHTS AND OPTIONS IN THIS PARTIAL SETTLEMENT:
COMMENT OR OBJECT Write to the Court about the settlement.
GO TO A HEARING Ask to speak in Court about the fairness of the settlement.
DO NOTHING If you previously did not exclude yourself from the Class, you
are a member of the Class and need do nothing at this time.
Since this is a partial settlement, no distribution of the
proceeds will be made at this time. At some time in the
future, a claim form will be disseminated which you will need
to complete and return to receive your share of the settlement
proceeds. As stated in the previous notice, you should
maintain all of your records of purchases of high fructose corn
syrup from any of the defendants for the period July 21, 1991
through June 30, 1995.
These rights and options and the deadlines to
exercise them are explained in this notice.
The Court in charge of this case still has to decide
whether to approve the settlement.
SUMMARY OF PARTIAL SETTLEMENT
Current Status of the Litigation
This litigation was commenced in 1995. On May 9, 1996, the Court
certified the case to proceed as a class action. In July 1996, via mail
and publication the Court notified the Class of the certification of the
class and the nature of the class' claims, afforded eligible persons the
opportunity to exclude themselves from the Class, and reported that a
partial settlement had been reached with defendant CPC for approximately
Between 1996 and 2001, the plaintiffs and the remaining parties engaged
in extensive discovery including more than 100 depositions of the
defendants' relevant executives and employees (both current and former),
the class plaintiffs' representatives, absent class members'
representatives, and other relevant third parties. In addition, both the
plaintiffs and defendants engaged in extensive document discovery and
hundreds of thousands of pages of documents were produced. The plaintiffs
and defendants also utilized the services of expert witnesses to analyze
the high fructose corn syrup market, and these experts produced reports
and gave depositions.
In April 2001, defendants moved for summary judgment seeking dismissal
of class plaintiffs' claims. On August 23, 2001, the Court granted the
motion for summary judgment dismissing plaintiffs' claims. Class
plaintiffs appealed to the United States Court of Appeals for the Seventh
Circuit ("Seventh Circuit"). The Seventh Circuit reversed the grant
of summary judgment in June 2002. reinstated plaintiffs' claims, and
remanded the case to this court for trial.
After the Seventh Circuit decision, the parties continued their
preparations for trial. At the Seventh Circuit's suggestion, the court
appointed an economic expert to evaluate the parties' experts' analyses.
The court appointed expert filed a report on January 6, 2004 and was
deposed on February 17 and 18, 2004. Among other things, the parties
filed more than 50 so called in Hmine motions seeking to preclude
certain evidence at trial. During the week of November 17, 2003. the
Court held a hearing on these motions. The Court found that a large
amount of evidence that class plaintiffs planned to use at trial was
admissible against ADM but not against Maize and Cargill. The Court also
issued two additional rulings. First, the Court denied ADM's motion to
compel the testimony of two former ADM executives, Terrance Wilson and
Michael D. Andreas, who had previously invoked their Fifth Amendment
privilege. Second, the Court denied Staley's, Cargill's and Maize's motion
to hold a separate trial from ADM. The district court certified these
decisions for immediate appeal to the Seventh Circuit. At the time this
settlement was entered into, the Seventh Circuit had not yet ruled
whether it would hear these appeals. Since then, the Seventh Circuit
declined to hear the appeal concerning the testimony of the former ADM
A proposed settlement has now been reached with defendants Maize and
Cargill for $24,000,000, which has been paid into escrow and is earning
interest. This proposed settlement, when added with the settlement with
CPC, would bring the total settlements in this case to over $31,000,000.
These are partial settlements. A portion of the proceeds from the CPC
settlement has been used with Court approval to pay necessary expenses of
The litigation against ADM and Staley is proceeding, and the Court has
set a trial date of September 7, 2004.
Further information regarding the Action and this Notice may be
obtained by contacting
Reasons for the Settlement
Plaintiffs' counsel believe that the proposed partial settlement is a
good recovery and is in the best interests of the Class. Because of the
risks associated with continuing to litigate and proceeding to trial with
Cargill and Maize, there was a danger that plaintiffs would not have
prevailed on any of their claims, in which case the Class would receive no
further recovery. For example, as a result of the tentative settlement
Maize's and Cargill's appeal regarding a separate trial from ADM was
dismissed. If that appeal had been successful and a separate trial was
held without ADM, according to the Court's rulings, much evidence
admitted against ADM would not be admissible in the trial with Maize and
Therefore, the parties agreed to the partial settlement to help to
ensure a fair and reasonable resolution to this matter and to provide
further monetary benefits to the members of the Class recognizing the
existence of complex, contested issues of law and fact; the risks
inherent in such complex litigation; the likelihood that in the absence
of settlement future proceedings could take additional years and be
extremely costly; and the magnitude of the benefits resulting from the
1. Why did I get this notice package?
You or your company may have directly purchased high fructose corn
syrup in the United States during the period July 21, 1991 through June
The Court directed that this Notice be sent to you because you have a
right to know about a proposed partial settlement of a class action
lawsuit and that the Court will hold a hearing to determine whether to
This package explains the lawsuit, the settlement, your legal rights,
and what benefits are available.
The Court in charge of this case is the United States District Court
for the Central District of Illinois, and the case is known as In re High
Fructose Corn Syrup Antitrust Litigation, Master File No. 95-1477. It has
been pending since 1995. The people who sued are called Plaintiffs, and
the company and the persons they sued, AD, Staley, Cargill, CPC, and
Maize are called the defendants.
2. What is this lawsuit about?
The lawsuit claims that beginning at least as early as 1988 and
continuing at least until June 30, 1995, defendants engaged in an
unlawful conspiracy to fix, raise, maintain and stabilize the prices of
high fructose corn syrup in the United States in violation of section 1
of the Sherman Act, Title 15 U.S.C. § 1.
Plaintiffs claim that as a result of the alleged conspiracy, they and
other members of the class described below have paid more than they would
have absent the alleged conspiracy. For the purpose of this action,
plaintiffs define "high fructose corn syrup" to mean a sweetener derived
from corn containing 42% or 55% fructose.
Defendants deny that they engaged in a conspiracy to fix the price of
HFCS or that they violated the antitrust laws in any other way.
3. Why is this a class action?
In a class action, one or more people called Class Representatives sue
on behalf of people who have similar claims. All these people are a Class
or Class Members. One court resolves the issues for all Class Members.
Judge Michael M. Mihm, who is located in Peoria, Illinois, is in charge
of this class action.
4. Why are there settlements?
The Court did not decide in favor of plaintiffs or defendants.
Instead, the Plaintiffs and Maize and Cargill agreed to a settlement.
That way, they avoid the cost of a trial, the risks associated with their
participation in the case, and the people affected will get compensation.
The plaintiffs and their attorneys think the settlement is in the best
interests of all Class Members.
WHO IS IN THE SETTLEMENT
To see if you will get money from this settlement, you first have to
decide if you are a Class Member.
5. How do I know if I am part of the settlement?
On May 9, 1996, Judge Mihm decided that everyone who fits this
description is a Class Member:
all purchasers in the United States who purchased high
fructose corn syrup directly from any defendant or any
subsidiary or affiliate of any defendant at any time
during the period from July 21, 1991 to and including
June 30, 1995.
A direct purchase is one made from one of the defendants and not
from anyone else, for example, a distributor.
6. Are there exceptions to being included?
You are not a Class Member if you are a defendant, a defendant's
parent, subsidiary or affiliate. Governmental entities are also excluded.
Purchases that are not from a defendant, or that were not made in the
United States, are not included in this settlement.
However, in July 1996, a notice was mailed to class members and was
published in the national edition of The Wall Street Journal and in USA
Today advising that the Court had certified a class and that eligible
persons had the right to exclude themselves. If you previously elected to
exclude yourself from the Class, you are not a member of the Class.
THE SETTLEMENT BENEFITS
7. What does the settlement provide?
Subject to the terms and conditions of the Settlement Agreement with
Maize and Cargill, Maize and Cargill have paid the principal sum of
twenty four million dollars ($24,000,000), which has been deposited in
an escrow account and is earning interest on behalf of the class.
The Settlement Agreement provides that Maize and Cargill will be
dismissed with prejudice, and released from any liability to members of
the class for claims relating to the purchase of high fructose corn syrup
under federal or state antitrust or unfair competition or similar laws or
regulations which are based, in whole or in part, on the facts,
occurrences or other matters alleged in this litigation.
This notice is only a summary of the terms of the proposed partial
settlement. The full agreement is set forth in the Settlement Agreement
with Maize and Cargill dated February 23, 2004 which has been filed with
the Court. The Settlement Agreement contains other important provisions
and you are referred to the Settlement Agreement on file with the Court
for the complete terms of the settlement.
IF YOU DO NOTHING
8. What happens if I do nothing at all?
There is no need to do anything now, unless you want to comment on or
object to the settlement. Since this is a partial settlement, and the
litigation is continuing against ADM and Staley, there is not going to be
any distribution of settlement proceeds at this time, although the Court
could order that some portion be paid to cover litigation expenses. At
some future date, you will be sent a claim form which at that time you
will need to complete and return to obtain your share of the settlement.
THE LAWYERS REPRESENTING YOU
9. Do I have a lawyer in this case?
The Court ordered that the law firms of Kaplan Fox & Kilsheimer
LLP, in New York, New York, Berger & Montague, P.C. in Philadelphia,
Pennsylvania, and Much Shelist Freed Denenberg Ament & Rubinstein,
P.C. in Chicago, Illinois will represent you and other Class Members.
These lawyers are called Co-Lead Counsel. You will not be charged for the
representation provided by these lawyers. If you want to be represented
by your own lawyer, you may hire one at your own expense.
10. How will the lawyers be paid?
To date, in the nearly nine years that this litigation has been
pending, plaintiffs' counsel have not received any payment for their
services in conducting this Litigation on behalf of plaintiffs and the
members of the Class. Since this is a partial settlement and the
litigation is continuing against ADM and Staley, plaintiffs' counsel are
not seeking any fees at this time or reimbursement of expenses. However,
the Settlement Agreement provides that the Court may approve the use of a
portion of the settlement proceeds to fund the ongoing litigation against
ADM and Staley.
COMMENTING OR OBJECTING TO THE SETTLEMENT
You can tell the Court that you don't agree with the settlement or some
part of it.
11. How do I tell the Court what I think of the settlement?
If you're a Class Member, you can tell the Court what you think of the
settlement. You can give reasons why you think the Court should or should
not approve it. The Court will consider your views. To comment, you must
send a letter or file a pleading saying that you support or object to In
re High Fructose Corn Syrup Antitrust Litigation, MDL No. 1087 and Master
File No. 95-1477. Be sure to include your name, address, telephone
number, your signature, and the reasons for your comments. Mail it so
that it will be received no later than May 10, 2004 to:
John M. Waters, Clerk United States District Court for
the Central District of Illinois Peoria Division 100
N.E. Monroe Street Peoria, Illinois 61602
THE COURT'S FAIRNESS HEARING
The Court will hold a hearing to decide whether to approve the
settlement. You may attend and you may ask to speak, but you don't have
12. When and where will the Court decide whether to approve the
The Court will hold a Fairness Hearing on May 19, 2004, at 3:00 p.m.,
before the Honorable Michael M. Mihm, United States District Judge of the
Central District of Illinois, Courtroom A, 100 N.E. Monroe Street,
Peoria, Illinois 61602. At this hearing the Court will consider whether
the settlement is fair, reasonable and adequate. If there are objections,
the Court will consider them. Judge Mihm will listen to people who have
asked to speak at the hearing. After the hearing, the Court will decide
whether to approve the settlement. We do not know how long these
decisions will take.
13. Do I have to come to the hearing?
No. Class Counsel will answer questions Judge Mihm may have. But, you
are welcome to come at your own expense. If you send a comment or
objection, you don't have to come to Court to talk about it. As long as
you mailed your written comment or objection on time, the Court will
consider it. You may also pay your own lawyer to attend, but it's not
14. May I speak at the hearing?
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 in In re High Fructose Corn Syrup Antitrust
Litigation" Be sure to include your name, address, telephone number, and
your signature. Your Notice of Intention to Appear must be sent to the
Clerk of the Court at the address in question 11 so that it will be
received not later than May 10, 2004. You cannot speak at the hearing if
you previously excluded yourself from the Class.
GETTING MORE INFORMATION
15. Are there more details about the settlement?
This notice summarizes the proposed partial settlement. More details
are in a Settlement Agreement filed with the Court on February 24, 2004
and in papers in support of the settlement which shall be filed by May
4, 2004. You can get a copy of the Settlement Agreement and the papers in
support of the settlement by writing to one of:
Robert N. Kaplan, Esq. Gregory K. Arenson, Esq. Kaplan
Fox & Kilsheimer LLP 805 Third Avenue, 22nd Floor New
York, N.Y. 10022 Telephone (212) 687-1980
H. Laddie Montague, Jr., Esq. Charles P. Goodwin,
Esq. Berger & Montague, P.C. 1622 Locust Street
Philadelphia, PA 19103
Michael J. Freed, Esq. Barat S. McClain, Esq. Much
Shelist Freed Denenberg Ament & Rubinstein, P.C. 191
N. Wacker Drive, Suite 1800 Chicago, IL 60606-1615
16. How do I get more information?
You can call one of:
Robert N. Kaplan or Gregory K. Arenson at (212) 687-1980
H. Laddie Montague, Jr. or Charles P. Goodwin at (215) 875-3000
Michael J. Freed or Barat S. McClain at (312) 521-2000.
PLEASE DO NOT TELEPHONE OR ADDRESS ANY INQUIRIES TO THE COURT.
TO: DIRECT PURCHASERS OF HIGH FRUCTOSE CORN SYRUP IN THE UNITED STATES
DURING THE PERIOD JULY 21, 1991 THORUGH JUNE 30, 1995
SUMMARY NOTICE OF PARTIAL SETTLEMENT
This Notice is given pursuant to the Federal Rules of Civil Procedure.
On May 9, 1996, the United States District Court for the Central District
of Illinois entered an order, which certified a class on behalf of:
all purchasers (excluding governmental entities,
defendants, subsidiaries and affiliates of
defendants, and other producers of high fructose corn
syrup and their subsidiaries and affiliates) in the
United States who purchased high fructose corn syrup
directly from any defendant or any subsidiary or
affiliate of any defendant at any time during the
period from July 21, 1991 to and including June 30,
1995 ("Class Period").
In July 1996, notice of the class certification was mailed and
published and class members were given the opportunity to exclude
themselves from the Class. Plaintiffs claim that defendants, Archer
Daniels Midland Company ("ADM"), A.E. Staley Manufacturing Co.
("Staley"), Cargill Incorporated ("Cargill:), CPC International, Inc.
("CPC"), and American Maize Products Company ("Maize") violated the
antitrust laws during the Class Period. Defendants deny the allegations.
This Notice is to inform you that a settlement has been reached with
defendants Maize and Cargill for payment of $24,000,000.00 in exchange
for the release of certain claims by all class members who did not timely
requested exclusion from the Class. The litigation is continuing against
ADM and Staley. A hearing will be held on May 19, 2004 at 3:00 p.m. in
the United States Courthouse, Courtroom A, 100 N.E. Monroe Street,
Peoria, Illinois, for the Court to determine whether the proposed
settlement with Maize and Cargill is fair, reasonable and adequate.
A description of this litigation and the proposed partial settlement
and your options concerning approval or objections is contained in a
detailed Notice of Partial Settlement which has been mailed to
identifiable class members. If you believe you are a member of the class
identified above and you have not received a Notice, you may obtain a
copy by writing to: In re: High Fructose Corn Syrup Antitrust
Litigation, P.O. Box 5306, Chicago, Illinois 60680-5306.
Any questions which you have concerning the matters contained in this
Summary Notice may be directed in writing to any of the following co-lead
counsel for the plaintiffs:
Robert N. Kaplan, Esq. KAPLAN FOX & KILSHEIMER LLP 805 Third Avenue New
York, New York 10022 (212) 687-1980
Michael J. Freed, Esq. MUCH SHELIST FREED DENENBERG AMENT & RUBENSTEIN,
P.C. 191 N. Wacker Drive, Suite 1900 Chicago, IL 60606 (312) 521-2000
H. Laddie Montague, Jr., Esq. BERGER & MONTAGUE 1622 Locust Street
Philadelphia, Pennsylvania 19103 (215) 875-3000
PLEASE DO NOT TELEPHONE OR ADDRESS ANY INQUIRIES TO THE COURT.
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