1 for the district of maryland northern … · baltimore, maryland before: honorable richard d....
TRANSCRIPT
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IN THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF MARYLAND
NORTHERN DIVISION
IN RE: TYSON FOODS, INC.CHICKEN RAISED WITHOUTANTIBIOTICS CONSUMERLITIGATION
CIVIL CASE NO.MDL-08-1982
Friday, January 15, 2010Baltimore, Maryland
Before: Honorable Richard D. Bennett, Judge
Appearances:
On Behalf of the Plaintiffs:James P. Ulwick, EsquireDaniel C. Girard, Esquire
On Behalf of the Defendant:Linda S. Woolf, EsquireT. Robert Scarborough, EsquireMichael W. Davis, Esquire
Reported by:Mary M. Zajac, RPRRoom 5515, U.S. Courthouse101 West Lombard StreetBaltimore, Maryland 21201
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(Proceedings at 11:30 a.m.)
THE CLERK: The case pending before this Court is
Tyson's Food, Inc., Chicken Raised Without Antibiotics for the
Consumer Litigation, MDL-08-01982, for a hearing on settlement.
THE COURT: Counsel, if you'll identify yourselves for
the record, please.
MR. ULWICK: Good morning, Your Honor. James Ulwick,
Kramon and Graham, and Daniel Girard, Girard and Gibbs.
THE COURT: Good morning, Mr. Ulwick. Good morning,
Mr. Girard. Nice to see you. And on behalf of the defendants?
MS. WOOLF: Good morning, Your Honor. Linda Woolf,
Goodell DeVries, on behalf of Tyson.
MR. SCARBOROUGH: Good morning, Your Honor. Robert
Scarborough on behalf of Tyson.
MR. DAVIS: Michael Davis from Sidley Austin on behalf
of Tyson.
THE COURT: All right. Nice to see you, Ms. Woolf, Mr.
Scarborough, Mr. Davis as well.
We have before the Court the plaintiffs' motion for
preliminary approval of settlement in this case. And I have
reviewed the settlement agreement and general release. And what
I propose to do is I propose to first review the proposed
settlement class and then we'll discuss the agreement. Is that
agreeable to the plaintiff and to the defendant?
MR. ULWICK: That's fine.
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THE COURT: Mr. Ulwick, be glad to hear from you. I've
read your memorandum and the settlement, and I've reviewed the
settlement. But why don't you summarize it again, if you will,
please?
MR. ULWICK: Thank you, Your Honor. What I would like
to do, Your Honor, is I'll turn it over to Mr. Girard, who was
the lead negotiator for the class in the negotiation with Tyson.
But I'll just start out by saying that we're very pleased to be
able to announce this settlement, that the parties have reached
what we believe to be a fair and just resolution of the case, and
we are pleased to present it to the Court for preliminary
approval.
If approved, the settlement will result in the
dismissal of all of the eight cases before Your Honor, as well as
the resolution of the MDL. We think the settlement's an
excellent result for the class and we hope that you will grant
preliminary approval so that we can provide notice to the class
and take it to a final approval hearing.
Mr. Girard will address the specifics, Your Honor, and
answer any questions that the Court may have. As you know, as
Your Honor's mentioned, there is a fairly extensive paper that we
filed that lays everything out in detail, including what the
steps are from here and what we propose should be done.
Mr. Girard has a lot of experience in this area, as
well as do counsel for the defendants. And I think that helped a
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lot here because both sides are expert at this and know what
they're doing. And while there were long and sort of arduous
negotiations, I think they got to a fair and just point.
THE COURT: Well, thank you, Mr. Ulwick. I note that
there essentially are eight cases, multi-district litigation
cases that are assigned here, the two Maryland cases, the lead
plaintiffs being Cutsail and Kranish, and then three cases from
Arkansas, one from the Western District of Washington, one from
Idaho, and one from New Jersey. I think they're the eight
cases --
MR. ULWICK: Yes, sir.
THE COURT: -- if I'm not mistaken. So I'll be glad to
hear from you, Mr. Girard.
First, I want to just address, if I can, first of all,
the proposed settlement class, i.e., all persons who purchased
Tyson's chicken or chicken products sold in the United States as
either "raised without antibiotics" and/or "raised without
antibiotics that impact antibiotics resistance in humans."
If we can go through that, first of all.
MR. GIRARD: Certainly, Your Honor. I guess where I'll
start is with Rule 23 since it's a class action, and specifically
Rule 23(e), which requires that the Court approve any settlement
or compromise of a case.
What we're doing here today is obviously the first
stage of the approval process, which is we're requesting this
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Court's preliminary fairness determination. And since that
requires the Court to provisionally certify the class, we're, I
think, starting at the logical point here.
The settlement class here was defined initially in the
master complaint. And what we have done is, through the course
of the settlement negotiation, we've refined the class definition
somewhat. The objective is to make a clean sweep here. And by
that I mean to have the settlement class be coextensive with the
class of possible persons out there who could conceivably assert
a claim for having purchased this product, which the plaintiffs
allege was falsely advertised.
And so what we did is we backed up the date for the end
point for the class somewhat, the idea there being that there was
product in the distribution system that would have been within
the permissible shelf life of the product as frozen, for example,
and that some of that product might have still been on the
shelves, working its way through the sales process. So for
purposes of settlement, we've agreed to expand the class
definition to encompass those products sales as well.
THE COURT: Going back to June 19, 2007? Is that --
MR. GIRARD: That's the beginning point. And the end
point is April, 2009. And that's what I was referring to in
terms of picking up any product that's still out there.
It's acceptable from our point of view because we don't
want a situation where we have people complaining that they can't
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make a claim because of the date that they made their purchases.
As a practical matter, the sort of overriding concern I have as a
negotiator on the plaintiffs' side in a case like this is that
it's very, very hard to get money into the hands of the clients
in a class action of this kind because, on one hand, you have the
defendants who are very concerned about not paying people who
don't have claims, and they're concerned people may make
fraudulent claims. Our goal is, obviously, to make it as easy as
possible. So that's the tension.
THE COURT: Particularly in this case. It's not like
General Motors where someone clearly has a General Motors vehicle
and drives up and shows you they bought a General Motors vehicle.
I note in the proposed settlements you have Tier One, Tier Two,
and Tier Three that we'll discuss.
Tier One includes those persons who actually have proof
of purchase, i.e., their cash receipts. Correct?
MR. GIRARD: That's correct.
THE COURT: How many people do you think have saved
cash receipts from chicken they bought two years ago?
MR. GIRARD: Relatively few.
THE COURT: I would suspect none.
MR. GIRARD: Well, it is possible through the Affinity
programs that some of the retailers maintain to get the proof of
purchase back. So you can go online and go back and get your
proof of purchase if you care.
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What we're trying to balance, when you settle a case
like this, what happens, what tends to happen is you have some
people who come into court and they actually have the receipts,
these are the people you couldn't find when you were litigating
the case, who are perfectly qualified to bring the case all the
way through trial. And you need a settlement that addresses
their perspective on the case because they're going to say if all
they get is some modest amount, they're going to say they're
being underpaid because they can prove their claim up.
On the other end of the spectrum, you have what I think
is the great majority of people, which are the people who have no
proof of purchase whatsoever and they're not going to do anything
beyond some relatively simple process in order to participate in
a settlement.
What the challenge for us is, is to balance the
settlement in such a way that we're able to pay the people on one
hand who have the proof of purchase, and on the other hand who
have very little to show.
What we've done here is negotiated three separate
payment tiers. There's the people with the receipts. If we were
in a litigation environment, I can think of several cases that
have said that if a class is going to be certified for liability
purposes, the class members will need to come forward with
receipts. And that's what we're looking at as an argument on the
defense side.
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Recognizing there are people who do that, I think
you're right. It would be relatively few, though we are paying
those people in full with a $50 limit.
Separately, we have negotiated a second tier for people
who want to make the relatively minimal effort of putting down
under oath the purchases that they made and estimating what they
bought and when. We've capped that at $10. We think that's a
pretty modest burden to put on someone. It's certainly a more
favorable payment provision than what people would be looking at
if the case was being tried.
Third, recognizing, again, that a lot of people are
going to do very little work in order to participate, made
available the option of making a claim -- and these are all
electronic claims -- for a five dollar coupon which applies to
any product Tyson sells.
Having said all this, it's still hard to get people to
make claims. And I've tried to do it a lot of different ways.
This kind of multi-option structure works the best. But it is
possible that if we're back here, if Your Honor preliminarily
approves a settlement and approves notice, we're back here in a
few months and we'll still have a low claims level despite our
best efforts.
For that reason, we want to make sure some benefit is
actually going to go out to consumers, and sort of negotiated
that they will donate the difference for whatever they don't pay
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out in administration and claims, based on their wholesale price,
in effect, in product donation. So at a minimum, we're going to
feed a whole lot of people here.
It's ironic that you mentioned General Motors because,
you're right. I was talking to Mr. Ulwick on the way over here
and mentioning the Federal Judicial Center statistics indicate
about, the last study they did, about 15% of classes, class
actions that ever get filed get certified. And we're facing some
challenging case law, in any case.
We think this is a case that could be certified for
liability purposes. But we know there are defenses here. In the
negotiation process, our adversaries were pretty good at pointing
that up.
But of the cases that have been certified in the last
year or so, most of those are cases where there is, in fact, a
clear record of who bought what, and you can identify class
members. My firm is counsel in several of the cases that get
cited as successful class certification cases. One's called Tele
Aid in New Jersey. Another one is Hyundai out in California.
In evaluating this case for settlement, I can tell you
we're very much aware of what it took to get those classes
certified on one hand, and on the other hand what it took for a
number of courts to decline to certify classes in some consumer
cases that have some elements in common with this one. The
analysis, for purposes of settlement, for purposes of the
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certification that we're asking you to make today is a relatively
different, it's a lower standard since the manageability analysis
that you're called upon to make under Rule 23(b)(3) is considered
in the settlement context, because we're not asking that there be
a trial. And that's what the Supreme Court decision in Amchem
says.
So we think that this is a proper class for settlement
purposes, and the defendants have agreed to that. We've
identified the elements for certification in our papers under
23(a).
There's no dispute, it's a numerous class. There were
thousands of buyers. There's no dispute that there are common
issues of law and fact with respect to the labeling of the
chicken and whether that labeling was accurate or not.
The class representatives in this case have been
deposed. If they were not typical, you would have heard that.
The defendants would not have settled this case if they thought
they could knock the class representatives out on typicality
grounds.
Same thing applies with respect to adequacy. These
people sat for lengthy depositions. They produced proof of
purchase of their particular chicken purchases.
The lawyers representing these folks, we've got a
considerable amount of experience. This is what we do. We have
been successful in litigating and resolving class actions in
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courts around the country. We acted at arm's length throughout
the process.
Under Rule 23(b)(3), that's where we get to the issue
of predominance, which in turn implicates the question of
manageability, which I referred to.
If the class is going to be litigated, they're going to
put on a vigorous defense of certification. We think it's
appropriate for certification, either liability or settlement
purposes, on the plaintiffs' side. You're not being asked to
decide liability today, simply that it is an appropriate
settlement class.
The implication of all that for me, there's a Fourth
Circuit case I've always thought was a pretty good case in terms
of evaluating the class action settlement for fairness. It's
called Jiffy Lube. It's a 1991 case. And what the Court does in
the Jiffy Lube case, it basically divides the analysis into two
sort of main parts. One is whether the settlement is
procedurally fair. And that looks at whether the class
representatives have any conflicts, whether the lawyers knew what
they were doing and acted at arm's length, and whether the due
process prerequisites of notice are being complied with.
If you have a, if the Court finds that the settlement's
procedurally fair, the product of an arm's length negotiation
process by lawyers who are informed about the case and acting in
their client's best interest, that your entitled to apply a
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presumption that the settlement is going to be substantively
adequate.
So the court looks at, on one hand, procedural
fairness. If it finds that procedural fairness requirements are
satisfied, then it looks on the other hand at adequacy and
applies a presumption of adequacy to the resulting settlement.
We think here, given the relatively advanced state of
this case, the 450,000 documents the plaintiffs have reviewed,
the dozen or more depositions that have been taken, the fact that
the negotiations took place over many months, this was not a
quick process, that the lawyers have experience in the field,
that it's a reasonable thing for you to apply a presumption that
the resulting settlement is adequate. Then when you look at it,
the settlement itself, as I mentioned, I think that it will be a
challenge to distribute all the money we have.
So if you were to conclude it's not enough, you should
go back and litigate the case, we run the risk of a complete loss
whereas we're here now with what I think is going to be enough
money to pay everybody in sight who wants to make a claim. So I
think on a quantum of relief level that the settlement is
entirely adequate in that sense.
I think we've done everything we can to try to make it
easy for people to file claims within reason, recognizing the
defendants will never agree to a settlement that is a pure
giveaway. I think we've come up with an outcome that is more
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favorable to the consumers than what they would be looking at if
the case were tried and we were to succeed at trial, under most
circumstances given prevailing law today.
So I think that the objective of compensating people
has been satisfied here. And I think that we've done everything
we can to try to make this accessible to consumers in terms of
the use of technology to make it easier for people to file
claims. The form of the notice we're using is a simplified
question and answer format that the Federal Judicial Center
developed, which we've adopted.
The other points, I guess I'm happy to answer any
questions the Court has. A couple other things I'll mention that
are just sort of incorporated into this process. One is that we,
as are technically prevailing parties for purposes of fee
shifting statutes which would give rise to a fee entitlement on
the part of plaintiffs' counsel, under the Supreme Court case
Hensley v. Eckerhart, it's recommended that the parties try to
settle that claim rather than have a second major litigation over
the amount of attorney's fees.
We discussed the amount of the fee after we had agreed
on all the substantive terms of the settlement and did that at
arm's length and reached what we think is a fair compromise.
They negotiated in their interest to minimize the amount we
negotiated in our own interest to try to get ourselves paid an
adequate amount. That fee is subject to your ultimate approval.
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We will document the services provided and the time
spent. I can tell you in advance, though, there's no windfall
here since we spent more in hourly rate time than the amount of
the fee. This is not --
THE COURT: Are you suggesting that you spent more than
three million dollars in time on hourly billing?
MR. GIRARD: We did. We did.
THE COURT: You're going to have to show that to me.
MR. GIRARD: Absolutely, Your Honor. We're going to
document it.
THE COURT: Because I will tell you that I find it,
some things I want to go over today, that I am troubled, I am
troubled by the notion of $10 to consumers and a $5 coupon and
three million dollars in legal fees. And I will tell you now
that you will have a very, there will be a very definite burden
imposed on that. And we'll get to that in a moment.
But I find that five million dollars in a figure which,
less the administrative costs, comes out to a net 4.4 million
dollars total distribution matched by up to 3 million dollars in
legal fees in a case with which I am very familiar, Mr. Girard,
as you well know. I had the initial litigation in this in which
I granted a preliminary injunction against Tyson's Chicken. This
is not, this is not a complicated case.
MR. GIRARD: I agree. It's not a complicate case at
all.
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THE COURT: Let me finish my thought. I want to give
you time. You understand, just so you understand, this is not a
complicated case. And the reason it was assigned to me is
because I'm very familiar with the case. This is not a
complicated case.
MR. GIRARD: I don't dispute on the merits --
THE COURT: Let me finish my thought.
MR. GIRARD: I'm sorry.
THE COURT: And to suggest that there's three million
dollars in legal fees -- I will go over this in a moment, but
there's going to be very close scrutiny given to that. I'm not
saying I'm ruling against that at this point in time. But I have
very, very strong doubts that this Court is going to approve
three million dollars in legal fees in this case. And that's why
I wanted to first -- I didn't mean to cut you off. But I want to
go step by step.
I don't have any difficulty in terms of the conditional
certification of the proposed settlement class. Your memorandum
has done a very thorough job in terms of the criteria under Rule
23(a) as to the numerosity, commonality, typicality and adequacy
of representation for the reasons that have been set forth, as
well as under 23(b), the opt-out basis for certification and the
proposed notice program, I think is very well done and advised.
I have no difficulty with that at all. And I'll hear from
defense counsel in a moment.
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I'm certainly prepared, based upon, and I'll go over
the reasons for it, I'm certainly prepared to indicate
preliminary conditional certification of the proposed settlement
class. I recognize that defendants have only concurred as to
that on the basis of settlement. If there's no settlement in the
case, then it's not binding upon the defendants.
But having been satisfied as to the certifiability of
the class, the inquiry here is into the fairness, reasonableness
and adequacy of the settlement.
My earlier question as to the matter of Tier One
participants, it may be that a few people somehow have charge
accounts or something that can show that, can satisfy the proof
of purchase to be at the $50 level. But you candidly
acknowledge, I think, I appreciate your candor, that there aren't
going to be many of those people.
Really, what you're talking about are Tier Two, where
people come forward and under penalty of perjury say they
purchased more than one Tyson product. Then it's $10 per class
member.
Then there's Tier Three, a $5 coupon to purchase at
least, you know, they purchased at least one Tyson product. And
there's a $5 coupon.
And I have no difficulty with respect to the named
plaintiffs being eligible for incentive payments up to $20,000.
But the difficulty becomes the matter of, essentially, we're
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talking about up to an eight million dollar fund being set
forward by Tyson's, as I interpret it, five million dollars less
administrative expenses that might total 600,000. So 4.4 million
available distribution. And then an additional three million for
attorney's fees. And I find that to be absolutely
disproportionate.
MR. GIRARD: Well, can I address that, Your Honor?
THE COURT: Absolutely. Well, you're going to need to.
What I'm going to do is to suggest, to go step by step. I'll
hear from Tyson's, either Ms. Woolf, Mr. Scarborough, Mr. Davis
first on the matter of the certifiability of the proposed class.
It's not binding upon Tyson's if I don't approve the settlement.
But I think, clearly, unless there's something to add from the
point of view of Tyson's, I don't find the case to be that
complicated.
I think, clearly, in terms of the criteria under 23(a),
I think the criteria are satisfied in terms of an identifiable
class. That's satisfied. And I certainly see in Paragraph Six
of the settlement agreement, which has been called a clear
sailing agreement, clear sailing provision is, I think, the
phrase used in some of these class action cases, pursuant to
which there's a clear sailing clause, pursuant to which the
defendant will not object to a fee award up to a certain amount.
In taking time to prepare for this hearing and
reviewing some of the cases, as well as the Manual for Complex
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Litigation, and quite a few of the Third Circuit cases, there are
more Third Circuit cases for some reason than Fourth Circuit
cases, I'm concerned about it.
Unless Tyson's wants to address it any further, I'm
prepared to make findings in terms of the preliminary conditional
certification of the proposed settlement class. And then I want
to get into the matter of the inquiry in terms of fairness and
reasonableness and adequacy of the settlement. The notice
provision seems fine. Incentive payments seem fine. As to the
amount that's projected to go to consumers, it could be higher in
light of the total eight million dollars that's being placed on
the table.
But my real concern is the disproportionate figure, to
suggest that there could be -- I know that the settlement
agreement notes that there could be, that Tyson's will not object
to attorney's fees and costs up to three million dollars. But
certainly, I'm willing to have a hearing and have presentation of
proof of time spent. That is something I want to address.
Let me just take the first step. Just if I can. What
is the vision of Tyson's in terms of going my step by step on
this, first in terms of the certifiability of the proposed
settlement class? Mr. Scarborough, you want to be heard on this,
or Ms. Woolf?
MR. SCARBOROUGH: Sure. Thank you, Your Honor. In
terms of certification for settlement purposes, plaintiffs have,
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you know, made a showing. We consider that really the issue
between plaintiffs and the court. Obviously, we have reserved
all rights for the Court not to approve the settlement to come
back and make a forceful showing --
THE COURT: Yes.
MR. SCARBOROUGH: -- why certification would be
inappropriate. And in particular, the manageability issue. And
that's the only thing I wanted to mention this morning, Your
Honor, is whatever the Court may feel about, you know, other
elements for settlement purposes, certainly one of the things
that remains a risk for the plaintiffs, and a very substantial
one, is the showing we believe we could make, that if this case
were tried as opposed to settled, if it were tried, that it would
be unmanageable for trial purposes. And that is what the Court
would see front and center in any full throttle opposition to
class certification.
As to the class issues, again, Your Honor, we take no
position on that. That's really an issue of, you know, the other
class issues, I should say, under 23(a) and (b)(3), that's really
an issue between the Court and the plaintiffs.
THE COURT: All right. Thank you, Mr. Scarborough.
Let me just go step by step, Mr. Girard. I don't want to cut you
off and I want you to get back into your argument. It's just
that I need to go step by step on this.
In terms of the matter of the provisional certification
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of the settlement class, in terms of preliminary approval in
terms of the settlement, I have no difficulty with the settlement
class. And in terms of the factors you've listed here, I think
it satisfies the criteria set out in 23(a), at least as one of
the Subsections of 23(b), in that there certainly are common
issues of law and fact.
I think that the class, in terms of numerosity, I think
that, I think it is so numerous that joinder of its members is
impractical. I think it's fairly cut and dried in that regard.
In terms of common issues of law and fact and the
criteria of commonality, under 23(a)(2), I think that there are
clearly questions of law and fact common to everyone in the class
for the reasons that you have noted. And again, as both sides
have mentioned, I've got great familiarity with this class in
light of my having handled the litigation between Sanderson
Chicken, Perdue Chicken, and Tyson's Chicken.
In terms of the plaintiffs' claims being typical in
terms of typicality under 23(a)(2), I think that it's certainly
fairly encompassed by the class representatives' claims,
certainly by those in Maryland here, by Cutsail and Kranish.
They're remarkably all the same. I don't see any situation here
where someone is coming forward and has been allegedly deathly
ill because they've consumed chicken and, in fact, had
antibiotics.
In terms of the adequacy of the representation, I know
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counsel is very, we have very experienced and highly regarded
Maryland counsel on both sides of the aisle here, as well as very
experienced counsel, national counsel. I have no doubt that the
plaintiffs' counsel have adequately represented the class and
will continue to do so under 23(a)(4). So there's adequacy of
representation.
And I think the settlement also meets the requirements
of 23(b)(3) with respect to the opt-out basis. I have no
difficulty with any of that. I particularly think the proposed
notice program and the suggestion as to Internet banner ads and
web sites such as CNN.com and Weather.com, are perfectly
appropriate. And I find, I'm impressed, actually, by the
proposed notice program.
So in terms of preliminary conditional certification of
the proposed settlement class, I don't have any difficulty with
that. But having been satisfied as to the certifiability of the
class, when I make an inquiry in terms of the fairness and
reasonableness and adequacy of the settlement, the monetary
amount of distribution troubles me.
There's just not any realistic, given my familiarity
with the case and just the reality, I don't think anyone
seriously believes that people keep their receipts for buying
chicken at a grocery store and then come forward with their $50
receipts two years later, a year and a half later. Again, the
only thing I can perhaps conjecture is that there are those that
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have particular charge accounts at grocery stores. There may be
some who could come forward and show receipts. But the reality
is is that it really is the Tier Two and Tier Three consumers who
are going to come forward.
I'm a little concerned about the $10 figure, the Tier
Two, and the $5 coupon as to Tier Three. Indeed, Mr. Girard,
you, as experienced as you are in this field, I'm sure are aware
that there are, there is some admonition to federal judges to be
wary in review of proposed settlements and granting class members
what are referred to as illusory, non-monetary benefits, such as
discount coupons for more than defendant's product.
That was addressed by the Third Circuit in one of the
General Motors cases -- In re General Motors Pick-Up Truck Fuel
Tank Litigation, 55 F.3d 768, a Third Circuit opinion, 1995.
Indeed, it is referenced in the Manual for Complex Litigation as
a factor that should cause this Court to be very wary of that.
But having said that, I think that, I don't have any
great difficulty with the notion of these two tiers. The figures
are somewhat low. They're particularly low in my eyes when I
then look at the matter of attorney's fees in light of what,
although the settlement agreement refers to a five million dollar
settlement, there really is an eight million dollar fund here.
And I note that in your very, the very thorough memorandum that
has been submitted here, Document Number 93 in support of the
proposed settlement agreement and general release Document Number
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94, this is very thorough discussion of all these matters, but
there's only three brief lines on Page 6 of the memo as to the
matter of, the matter of potential attorney's fees approaching,
not to exceed three million dollars.
Now, having said that, I'm not accusing counsel of
saying, Judge, authorize today that we're going to get three
million dollars. It's clear to me in terms of what I've referred
to as the clear sailing clause, that Tyson's is merely agreed
that it will not object to a fee of an award up to that amount.
But I need to hear from you, Mr. Girard, Mr. Ulwick, in
terms of what you propose to, how you propose to structure this.
There are obviously two methods for calculating attorney's fees,
a percentage of recovery method and a lodestar method. I will
tell you that in terms of my familiarity with the case, which I
just don't really find to be that complicated, it seems to me
that we've got a lodestar method here in our court.
Under the local rules, we have under our local rules of
court, Appendix B with respect to lodestar guidelines and
attorney's fees and hourly rates that are approved after all the
consideration by the judges of this court. I'm very much
inclined to apply a lodestar method here. And counsel can come
forward and submit their time records in terms of how much time
they've spent. Then I'm more than willing to review it.
I'm not, I'm not absolutely saying that I wouldn't
approve legal fees, extensive legal fees if I find that the time
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has been well spent. But as Mr. Ulwick well knows and Ms. Woolf,
local counsel here, I've kept my thumb pretty clearly on this
case. We've had monthly, you know, conferences, status
conferences with counsel. I'm very much aware of the 15
depositions that were taken. And I am hard-pressed to believe
that there's three million dollars in legal fees. So I'm more
than prepared to carefully review it.
So having said that, I don't want to totally stop the
wheels on this. So I'm more than willing to hear what your
suggestion is in terms of what notice does go out and what
preliminary approval I can provide. And perhaps we keep the
matter of attorney's fees just a matter that's open.
But that's how I propose to do it. I'll be willing to
hear from both sides on this. Mr. Ulwick.
MR. ULWICK: Well, Your Honor, the matter of attorney's
fees is open because the attorney's fees in this case, whatever
attorney's fees are paid in this case are going to be those
attorney's fees that you approve. So you're not approving
anything right now by giving a preliminary approval to this
settlement. We expect and hope that you will maintain an open
mind about this and not make a decision right now or even come to
an impression about it right now because you have no data in
front of you at all. And you don't know what was done.
Now, Your Honor has, you said you've been involved.
And that's true. But Your Honor will recall that there have been
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many, many disputes, that Your Honor has been told there's a
dispute going on and we will let you know if we need a ruling.
And because there are good counsel on both sides and because we
work very hard at it, most of those disputes got resolved before
they ended up being presented to you. And you know that happened
because we had all these conference calls where those issues
would be put on the agenda. The parties are talking, the parties
are working through, the parties are dealing with these issues.
And I will say to Your Honor that while I agree with
you that on the liability side of the case that it was a
straightforward case and that the plaintiffs had the benefit of
what Your Honor, Your Honor's work and the competitor case suit,
and we had that as a road map to follow, but, A, that didn't end
the matter by any means because these people over here weren't
going to accept that, didn't have to and were going to fight it
at every step of the way, and did. And B, that has nothing to do
with the question that counsel just mentioned a minute ago, and
you heard a very small slice of this, that you would have heard a
very big part of this if we did not settle the case, on class
certification, which was, this case can't be certified. That's
what they were going to tell you.
And a lot of what was done on our side of the case was
the very hard ground work to show that it could be, that we could
get it in the hands of people you've mentioned. People don't
keep receipts. Okay. So does that mean we give up? No. It
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meant that we went through all of their documents and their
delivery system and their grocery stores and the people at the
warehouses and the people that they sell to, to see whether we
could trace this stuff. Can we find the computer records? Can
we go through these records and be able to trace and find out?
Are there loyalty programs that Giant has and Safeway has and
Wal-Mart has that we can see and track what people, what products
people purchased?
We went through that stuff so that if they made that
argument to you, we were going to be able to counter it. And it
took a lot of time. And you'll see the time.
And we will be pleased to show you what has been done
here because I can tell you that from my standpoint as a
representative of the plaintiffs, while I'm very proud to present
this settlement to the Court, I am not ashamed at all to be part
of this fee petition because the fees that we're going to be
getting are going to be less than what I normally charge and get
on an hourly rate at the end of the day. That's assuming that
you give us every cent of what we've asked for, I'm going to get
less than my normal rate that I get every day.
THE COURT: Has any preliminary run been done -- Mr.
Ulwick, your point is well taken in that Paragraph Three of this,
I think it's Paragraph Three, Paragraph Six, rather, of the
settlement agreement merely references the attorney's fees.
What I'm trying to indicate here is, is that it needs
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to be clear, if I provide the preliminary approval of the
settlement in this case and sign the proposed order so the notice
goes out --
MR. ULWICK: It is understand, absolutely.
THE COURT: -- that in light of this structure, the
notion of there being a total 4.4 million dollars distributed to
either Tier A, Tier One representatives, which I doubt there will
be many of, Tier Two and Tier Three, as well as contributions to
the Food Bank and administrative costs, and there's a total of
4.4 million dollars that goes out, that to then have there be 3
million dollars in attorney's fees, whether it's a percentage of
recovery method, which puts that at a pretty high percentage, or
whether it's a lodestar method, I think it's very important for
the public to understand, Mr. Ulwick, you know certainly well
that the public, when it looks at these matters, these class
action settlements, there's a general perception that, let's just
say there's a general perception that a lot of money goes to
lawyers and not enough to consumers. I'm not saying that's
necessarily fair.
MR. ULWICK: Very well aware of that.
THE COURT: So from the point of view of the Court,
exercising careful approval authority under 23(e), Rule 23(e),
I'm just suggesting that there's going to be a close review of
the time sheets. And I think everyone has to understand that
it's not that I'm jumping to conclusions, Mr. Ulwick. I spent
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even more time preparing for this than I expected to when I
started to go through the implications of it.
Three million dollars in attorney's fees is a lot of
money. And I just don't really see that -- let's put it this
way. If you were able to present to me right this moment time
sheets from your firm, Mr. Girard's firm, I believe there are
three other plaintiff's firms, correct?
MR. ULWICK: Right.
THE COURT: And you calculated it all up and you said,
Your Honor, here's the lodestar and here it is and here's the
time of the paralegals, and here it is, bingo, we're at 3.3
million dollars, then I would have to tell you that I'd say,
well, you know, in a settlement which 4.4 million goes out to the
members of the public, the lawyers are just going to have to cut
back some more. That happens all the time.
We would be here if the case were litigated, obviously.
I mean, these things, eventually, I'd have to address this if the
case was certified, tried, verdict. We'd still be right here.
I do appreciate all the hard work that's been spent.
And I think it's a very thorough settlement agreement. But I
just want to make sure that it's clearly understood that I'm in
no way rubber stamping or ratifying a proposed three million
dollar distribution of attorney's fees.
And I'm certainly going to -- we'll schedule a hearing
on this, you know, along with the notice provisions and the
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ultimate fairness hearing. This is going to be a matter I'm
going to give close attention to. I'm more than prepared to look
carefully at the time sheets.
MR. ULWICK: And that's fine. We have absolutely no
objection to that. And I will tell you, Your Honor, so it's also
clear, Your Honor stated your position, my position at that
hearing is going to be that we are entitled to every bit of that
based on all the work that has been done in this case and what it
took to get to this point. And I know what was done because I've
been on this side.
Your Honor, you know, you've seen the surface. You see
the surface and the surface seems smooth. You don't know what's
going on below the surface. And we have to have our opportunity
to show you.
THE COURT: You will get that.
MR. ULWICK: We haven't had that.
THE COURT: Absolutely. I promise you'll get that.
And I can tell you, given my great familiarity with you, Mr.
Ulwick, and you, Ms. Woolf, that on some of these matters you
know I stay pretty, I keep my thumb on discovery pretty tightly
in my cases and I'm very familiar with the cases. And when it
comes to attorney's fees, to put it bluntly, that's not something
that can be assigned to a law clerk doing research. And I do
that myself.
When it comes to attorney's fees, based on my years of
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experience in private practice, I just don't find that something
I can delegate to anybody. And I have to sit hour upon hour and
work through it myself. I mean, I literally go through, I can
recall a case in which --
MR. ULWICK: As long as somebody looking back on it
would say, Wait a minute, federal judge didn't need to be doing
this. Why is a federal judge's rate being charged? It should
have been a law clerk.
THE COURT: My point is, is that I'm going to give it
close scrutiny.
MR. ULWICK: Good.
THE COURT: And I can assure you that I'm going to look
at it myself. It will take many an hour, but I will look
through, in terms of if I think it can be said there's
duplication of time effort, or it can be said perhaps there was a
little overstaffing at a deposition. I don't know how. But I
will give it close scrutiny.
On the other hand, if I find that there wasn't
overstaffing and there was one lawyer or two lawyers and a
paralegal at a deposition and the deposition took what it took,
then that's fine.
I'm not prejudging. But I would be remiss if I didn't
tell you that in terms of providing this preliminary approval,
and so the record and the public record is clear, I am not in any
way rubber stamping up to three million dollars in legal fees.
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MR. ULWICK: As long as the record also shows that Your
Honor hasn't made up any decision.
THE COURT: No. No, I haven't.
MR. ULWICK: And that you're not saying that there's
something wrong with making this petition.
THE COURT: And I didn't mean to be too quick with Mr.
Girard. I'm going to be surprised -- again, I can be educated on
this, Mr. Ulwick -- the notion of there being three million
dollars in time sheets, knowing the lead effort that you and Mr.
Girard's firm has taken, no disrespect to the other three
plaintiff's law firms. But my sense is, I'd be very surprised if
there's that kind of an attorney fee award granted in this case,
but we'll wait and see.
MR. ULWICK: Right.
THE COURT: And the hearing itself will require a great
deal of time and preparation. And it really, Tyson's is sort of,
obviously in these kinds of cases, as I've said, with these clear
sailing clauses, Tyson just sits on the sideline and just awaits
the resolution of it. Tyson's has agreed not to contest anything
up to three million dollars.
I've reviewed the matter of the notice provisions, as
I've said, and the particular structure. So looking at your
memorandum in support of your motion here, the preliminary
approval order that you've suggested as your Exhibit B to your
agreement, correct, Mr. Ulwick?
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MR. ULWICK: Yes.
THE COURT: I believe it's Exhibit B, the preliminary
approval order, I've certainly, on the matter of fairness,
adequacy and reasonableness, not so much of a conundrum, the
thing that I'm dealing with here is that it may very well be that
you produce time sheets and I do this personal, exhaustive review
and I find that lo and behold, you do have three million dollars.
MR. ULWICK: More.
THE COURT: Or more. And then I look at the ultimate
distribution. And I see how many people are going to get $10
checks and how many people are going to get $5 coupons. And then
I see how much of the balance is sent over to the Food Bank. And
then I look at the proportionality of 4.4 million and 3 million.
And then the issue becomes whether or not that is fair and
adequate and reasonable. The ultimate fairness hearing will be
affected by that.
Now, I don't think that precludes me -- and I want to
make sure Tyson's stays with me on this -- I don't think that
precludes me from signing the preliminary approval order.
MR. ULWICK: No.
THE COURT: And providing the notice. What it does is,
is that it says that I find that if Tyson's is willing to put
eight million dollars on the table total, that I may find that
there's a disproportionate payment of attorney's fees, even
though the attorney's fees have been proven to my satisfaction,
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in light of what has gone forward. And that is something that I
think we can address at the ultimate fairness hearing that would
preclude, it may or may not preclude my ultimate approval of the
settlement under Rule 23(e). But I don't think it precludes my
signing the preliminary approval order at this time.
You would agree with that, Mr. Ulwick and Mr. Girard?
MR. ULWICK: I do. Your Honor, what you're doing is,
at this point what you're saying is the settlement is within the
range of what is, that it could be approved when we get to the
final approval hearing and that it is sufficient enough to send
it out to the class, the notice, so that you can then have a full
opportunity at the final hearing where all of the data is in
front of you and all the facts are in front of you and whatever
reaction there is from the class is in front of you, and you then
make your final determination at that point.
Nothing that you do here today is binding on you.
THE COURT: All right. Mr. Scarborough, any further
thoughts you have on this?
MR. SCARBOROUGH: Your Honor, we certainly agree that
what the Court proposes to do with the preliminary approval order
is correct. The one thing I wanted to point out to the Court.
You mentioned that if Tyson's were willing to contribute a full
amount, a fund as you've been calling it, of eight million
dollars, then you'll work within that to figure out what the
right ultimate distribution is.
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I would just want to put a place holder there, Your
Honor, that that is not the settlement --
THE COURT: I understand.
MR. SCARBOROUGH: -- to which we agreed.
THE COURT: I understand.
MR. SCARBOROUGH: And obviously, we'll be informed by
the Court's views. But I do want to make sure the Court
understands that.
THE COURT: Absolutely. Your settlement is five
million dollars and a clear sailing clause of not objecting to
legal fees up to three million dollars. From the Court's
perspective, in terms of when I have to look at the matter of
fairness, adequacy and reasonableness, what I see is, is that
essentially totally Tyson's is talking about up to eight million
dollars. Tyson's is committing up to five million dollars in the
settlement and recognizes that it's willing not to contest legal
fees up to three million. So what I see is a total of an eight
million dollar fund.
What is important for me in terms of the protection of
the public is my concern is to have a situation where it's
perceived that there's a 50% split, so to speak, between the law
firms and the public and whether or not I think that's fair and
adequate or not. So that is why I'm trying to carefully put on
the record here how I'm structuring this. It remains to be seen.
And that's the point I'm making.
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It would remain to be seen if, ultimately, at the final
fairness hearing I indicate a difficulty in accepting it. And
then you might be 80% there and have to go back to the drawing
board within those parameters. It's not for me to try to help
you settle the case, and that's not the structure I'm suggesting.
It's just as I see it, there's eight million dollars
there. Mr. Ulwick is very emphatic about being able to, by a
lodestar method and by hourly billing, show the amount of time
that's been spent and the entitlement of the attorneys up to
three million dollars in legal fees. Have to wait and see on
that. But that is a concern to me.
So again, when you get to the matter of
proportionality, that's a proportionality question here that I'm
just going to need to address. It may come down to that. I just
don't know. And that's my point on this.
MR. SCARBOROUGH: Your Honor, we certainly understand
that. I think you understand our position.
THE COURT: Absolutely.
MR. SCARBOROUGH: If the Court were to find something
else, it would be rejecting the settlement and allow us to go
back to negotiate.
THE COURT: That's exactly right. And I'm not
suggesting I'm going to do that. But I just am trying to make
sure. It should be pretty obvious by now in terms of the
hearing, this is not just a rubber stamp process we're going
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through today, I'm taking time on this, and this is a very
important matter here, to make sure it's clear on this
preliminary approval.
MR. SCARBOROUGH: Your Honor, two points I would like
to make. You've mentioned that you see this case as a very clear
case in your view.
THE COURT: I don't think I said clear, Mr.
Scarborough. I said I don't think it's really complicated.
MR. SCARBOROUGH: Complicated. I'm sorry, Your Honor.
That's correct. I do want to point out two things that I think
will inform the Court's ultimate judgment regarding the fairness
of the settlement.
First is, there are serious issues of manageability
that have been extracted from the process because we are electing
to settle the case. And if need be in connection with the final
approval or, you know, at the Court's request, we'd be more than
happy to demonstrate what those issues are, which I think would
give the Court some pause about how this case might look and how
complicated it actually could become when you really have to set
forth using rules of evidence, you know, the Rules of Civil
Procedure, you've got to marshal this case towards trial. It is
a lot more complicated.
And I think that's one of the reasons we're here before
you today, is that there is some recognition on even the
plaintiffs' side of those difficulties that could give either
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this Court or the Fourth Circuit, you know, ultimately some pause
about the actual merits certification of this case. That is, a
certification for purposes of trial.
Secondly, Your Honor, I think the Court would be
surprised or will be surprised to see how much money really is at
stake in this case. I think one of the reasons we're before this
Court is it's just not that big of a case. And regardless of
what the Court, you know, may have thought about the labels
themselves, one of the things that we were going to be able to
demonstrate, and I think plaintiffs understood our position,
whether they agreed with it is another matter, but they certainly
understood our position, that we were going to have compelling
evidence that the RWA program, despite our greatest hopes,
ultimately, as time wore on, was not the success that we hoped it
would be.
Frankly, there were, the consumers were not paying
attention to what was on the package. And we had developed
evidence in this case that I think demonstrates that.
So Your Honor, I do want to urge some caution in
approaching the, you know, the settlement, that under the
circumstances the amount being paid at the class for those who
feel that they were injured, you know, we believe is a fulsome
amount.
THE COURT: Thank you. Anything further? Yes, Mr.
Girard.
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MR. GIRARD: May I be heard? Thank you, Your Honor.
Just a couple comments I wanted to make.
I guess, first of all, as far as what the Court is
doing today and how that relates to the attorney's fees, as far
as I'm concerned all that the Court is doing is approving a
notice that tells a class that the plaintiffs' lawyers are going
to apply for attorney's fees in the amount of three million
dollars and that that's an amount the defendants have not, agreed
not to oppose. There's no judicial imprimatur on that in any way
other than simply you're approving the notice.
So I'll reaffirm what Mr. Ulwick said, that we view
this question as open. And like him, I hope you'll keep an open
mind on it.
There are a couple comments that the Court made, I
wanted to just respond to.
THE COURT: Go right ahead.
MR. GIRARD: These are things that we live with and we
struggle with when we're trying to figure out how to settle a
case like this. The first one is the disparity between the
aggregate amount of the attorney's fees and the amount any
individual client gets.
I understand how that looks when you've got a $5
payment and it's a coupon and you've got 3 million dollars going
to lawyers.
THE COURT: The Manual for Complex Litigation lists a
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whole series of types of situations that specifically instruct
federal judges to be very wary of it, Mr. Girard.
MR. GIRARD: Your Honor is absolutely right. And let's
work through it, is all I'm saying.
THE COURT: Sure.
MR. GIRARD: On that specific point, as to any single
client, I mean, I've heard judges comment on that before. The
flip side of it is, if you're going to have a consumer class
action, it's very hard to bring in lawyers to go up against
Sidley and Austin in a multi-million dollar case and not have
them spend a fair amount of money. And no matter what we do, the
amount that any individual client gets is always going to be
small. It could be $1,000 on a $20 purchase and you could still
say, that's a small amount compared to the 3 million dollars
you're getting.
The debates we've been having with them on the other
side is that they're telling us, look, you got to show me that
people are paying more than, than, less than a dollar in economic
upcharge on any single purchase. That's the argument they're
making.
So when you put the $5 and you compare that to what
somebody could actually prove in damage, it starts to look good.
Then let me talk about the fact that it's a coupon. I
struggled with that. And there are, I'm well aware of the case
that you cited.
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THE COURT: General Motors case out of the Third
Circuit, yes.
MR. GIRARD: Yes, which is a Third Circuit case. And I
am familiar with that litigation. The coupon in that case was a
coupon on the purchase of a new car. We're talking here about a
coupon for any product that Tyson sells. And anybody who bought
chicken before is going to buy chicken again, or they're going to
buy some kind of protein product. It's a staple.
And so when you're talking about an inexpensive way to
get money into the hands of a consumer, it starts to make sense.
Because if you write somebody a check, nobody wants a check for
five dollars. It costs three dollars to write a check by an
administrator. So using a coupon like this ends up being in some
ways a more convenient thing for consumers than paying them cash.
We've done settlements with debit cards, for example.
But you can't do that, again, for $5. The cost of doing it is
greater than it is.
So I would ask you to consider these things from the
practical perspective we're living in, which is how do you really
do this once you're talking about actually settling the case.
Now, there's another proportionality that you referred
to, which is the proportionality between the amount of relief for
the class and the amount of attorney's fees. And that's a
different proportionality from what an individual gets in
relation to what the lawyers get. And that issue's been talked
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about by courts. And if, as Mr. Scarborough pointed out, this is
not truly a common fund settlement in the sense that they're
going to put up eight million dollars and they're going to get a
release for it, and then you decide how we're going to distribute
that money, and we're going to tax the amount any individual gets
by reference to, you know, some percentage, which is, you know,
the original common fund case.
This is, as Your Honor recognizes, is a lodestar-based
fee determination because we're relying on the prevailing party
statutes. And when we came into this case, I was taken with the
Sanderson Farms.
THE COURT: Because generally, the percentage of
recovery method is preferred in a common fund case.
MR. GIRARD: If it was truly a common fund. But it
works in securities cases and it works in antitrust cases. Most
consumer class actions don't lend themselves to the common fund
methodology for the reason that, again, it makes more sense to
get the payments out to people in some simplified way, like what
we've done here, than it does -- I've had settlements with
consumer cases where you've had a hundred million dollars and no
one's happy because what matters from a consumer perspective is
what an individual person gets.
And what we talk about in my office is a person who's
coming home with the two bags of groceries and the kids and she
opens up the notice. Is it something she can use or not?
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And having to make a claim, even if we had a hundred
million dollars here, if the person has to go through a
burdensome claim process, it's not going to matter. And we'll be
back here asking you to approve a cy pres distribution of some
large amount of money to a public interest organization, which is
a worthy cause. But it doesn't get money into the hands of our
clients. And that's the reality that we've been struggling with
in this particular case.
But again, on this point of proportionality between the
total amount of the fee and the amount of relief, the fairness of
the settlement isn't a function, I would submit, of the amount of
attorney's fees. That's a separate issue. It's reserved to this
Court and it's for another day when you have the evidence in
front of you.
What the fairness of the settlement turns on is the
merits of the case and the procedural issues we've talked about
and what a reasonable settlement is under these circumstances.
Getting into this case, I was quite taken with the
Sanderson Farms proceeding, and I had the sense it was a simple
case as well. And it is a simple case still, I think. The
concern is on a procedural level, certifying this class has some
challenges to it. And we're mindful of the fact that 23, Rule 23
has an automatic appeal process built into it now, and some of
these are getting reversed.
And so what we're looking at, given the experience we
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have in a case like this, is that at this point we think we can
get consideration into the hands of the class members. We think
the amount we have is going to be sufficient to pay everyone who
wants to make a claim.
It's possible that you could come up with a more
generous claims process than this, but not one they're going to
agree to, because I've spent the last six months negotiating with
them on this. And this is, this was the best we could get out of
them.
Now, for purposes of what you need to be comfortable
with today, I don't think it's the fee, for the reason we've
talked about. It's really the substantive terms of the
settlement. Because we are going to go out and spend about,
close to a half a million dollars on notice here. And the
settlement's not going to change. It's not going to get any
better. This is it.
And if Your Honor has any concerns with the substantive
terms of the settlement itself, that's what I think we really
need to focus on today because we would rather know that now, and
I think our adversaries would rather know.
THE COURT: I have no problem with the fundamental, in
terms of the fundamental fairness of the settlement. What my
concern is is the proportionality of legal fees that are awarded
in connection with that ultimate settlement. And that's my
primary concern.
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I don't propose to micromanage the case. Mr. Ulwick is
certainly right when he notes that whereas I had my thumb on the
case and had monthly status conferences with counsel, I'm very
familiar with having been the judge in the Sanderson v. Tyson
matter, I can't presuppose to know exactly the terms of the time
that's spent and in terms of the distribution to the class. I'm
not second guessing that so much. I am very concerned about the
proportionality issue here. I know your position is is that it's
not a common fund case.
In terms of whether or not it's a percentage of
recovery method or a lodestar method, I'm just not sure. But I
am concerned about that. And again, it can wait another day as
long as it's clear -- now, I'm not so much concerned about that.
But the matter of the amount of the distribution in light of,
very unlikely there's much Tier One distribution. And the
reality of $10 distributions and $5 coupons and the
proportionality of that vis-a-vis the legal fees is what I'm
trying to make sure is clear here.
I note here the preliminary approval order just merely
makes reference to the fact that at the fairness hearing we will
determine the matter of fairness of attorney's fees and expenses.
I'm looking here. I don't see anything in the preliminary
approval order that, if I'm missing something, that specifically
references Tyson not objecting up to three million dollars. Is
there something here in the preliminary approval order? I don't
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know that there is.
MR. GIRARD: It should be in the notice, actually, and
I believe it is, Your Honor. And I think that's where, I think
we assume that you know what, what you're doing.
THE COURT: Yeah. I mean, I've got the preliminary
approval here. I'm just, in terms of the notice that goes out --
MR. GIRARD: The notice, I'm familiar with that
provision. I can tell you from memory. I'll be embarrassed if
it doesn't say this. What I believe --
THE COURT: I'm looking at the preliminary approval
order that's been presented to me. Then you've got -- hold on
one second. Let me see here.
I've got the proposed final judgment order for rule, a
later day.
MR. GIRARD: Yeah. Your Honor --
THE COURT: What exhibit is it, the notice itself?
MR. GIRARD: The notice is Exhibit E. The long form
notice.
THE COURT: Hold on one second. Here it is, all right.
Thank you.
MR. GIRARD: So it's Paragraph 6-B on Page 4.
THE COURT: All right. Yes, I see that. This is the
notice provision. Not that I am suggesting it shouldn't be
notice to the members of the public. I just didn't see it.
Okay.
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The particular, the motion before me now is a motion
for preliminary approval of settlement. And the particular order
that's been proffered to me now is Exhibit B, is the preliminary
approval order itself. There's nothing more for me to sign other
than that today, correct, Mr. Girard?
MR. GIRARD: That's correct. And there are some dates
that --
THE COURT: I'm going to go over that right now. Is
that correct from the point of view of the defendants? I'm just
basically looking at this preliminary approval order, getting
ready to sign this. And we'll discuss the dates right now as I
sign. Is that agreeable to you, Mr. Scarborough?
MR. SCARBOROUGH: Correct, Your Honor.
THE COURT: All right. All right. Looking first at
the --
MR. GIRARD: The first one would be on --
THE COURT: Page Three, Paragraph Six.
MR. GIRARD: Correct.
THE COURT: What is the proposed fairness hearing?
What is the date that you all propose?
MR. GIRARD: We would propose May 7th, 2010, if that's
acceptable.
THE COURT: Is that agreeable to the defendants?
MR. SCARBOROUGH: It is, Your Honor.
THE COURT: Hold on one second. All right. Friday --
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that's Friday, May the 7th. That will be fine. At 10:00 in the
morning?
MR. GIRARD: Fine, thank you.
THE COURT: Friday, May the 7th at 10:00. And the
Court will hold a fairness hearing on the fairness, adequacy and
reasonableness of the settlement agreement and the proposed
settlement, and determine whether final approval of the
settlement should be granted, as well as the settlement class
counsel's application for attorney's fees and expenses. Then the
next is Paragraph Eight, Page Four. Correct, Mr. Girard?
MR. GIRARD: Yes, Your Honor.
THE COURT: All persons who meet the definition of the
settlement class and who wish to exclude themselves from the
settlement class and the settlement must submit an exclusion
request by, what is the date you propose?
MR. GIRARD: We're proposing April 19th for both those
dates. That's the same date.
THE COURT: Any objection, Mr. Scarborough, as to that?
MR. SCARBOROUGH: None, Your Honor.
THE COURT: All right. So that will be April 19, 2010.
The request for exclusion must be in writing. And furthermore,
the request must be mailed to the settlement administrator and
received no later than April 19, 2010. Correct, Mr. Girard?
MR. GIRARD: Yes, Your Honor.
THE COURT: All right. Then the next date is in
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Paragraph Nine, at the top of Page Five.
MR. SCARBOROUGH: Also April 19th.
THE COURT: By April 19.
MR. GIRARD: One thing I'll note in passing, Your
Honor --
THE COURT: We've finished with the dates, then, have
we not?
MR. GIRARD: Yes, Your Honor.
THE COURT: Go ahead, then, Mr. Girard.
MR. GIRARD: All I was going to say, one point, since
we are talking about the Manual for Complex Litigation here.
What we've done is we've adopted the best practice here of filing
our papers, including the fee application.
THE COURT: Yes.
MR. GIRARD: Before the deadline for class members to
comment. So if someone has an interest in this, if it's an
objector, whoever, they'll have our papers and they'll be in a
position to come forward and let their, let this Court hear their
views on this.
THE COURT: All right. I'm signing this order today.
Madam Clerk, would you quickly just run three copies of that for
me? All right. Just three copies. We'll get this filed.
Is there anything further from the point of view of
the, on the matter of the preliminary approval, on the
settlement, the motion before me?
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MR. ULWICK: Nothing further, Your Honor.
THE COURT: All right. Anything from the point of view
of Tyson's, anything further I need to address this morning?
MS. WOOLF: No. No, Your Honor.
THE COURT: All right. Mr. Ulwick, if you can, you and
Mr. Girard can determine how you want to approach the -- hold on
a second here -- the matter of the attorney's fees. It seems to
me that that will all be addressed on May the 7th. I don't
propose we pick a date now. But if you think that, it just
occurs to me that it may or may not, just thinking logistics, how
we go about this, given I've noted that that's something I don't
delegate and I look carefully at it myself.
While we're waiting for this to be copied here. What
is the proposal here? Because I know everyone wants me to
indicate on May the 7th at the hearing this is approved and it's
done. What would be your suggestion about my having time to
review the attorney's fees? Then I'll hear if Tyson's has an
objection.
MR. ULWICK: We would propose that we would file the
final approval papers and the fee application on April 9, so that
would be a month before.
THE COURT: All right. Is that agreeable to you, Mr.
Scarborough, Ms. Woolf?
MR. SCARBOROUGH: Your Honor, I was distracted. I'm
sorry. What?
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THE COURT: What I'm addressing is the matter of, I
know you all want final disposition by May 7th. I'll address
this. The point is, is that I don't know if we wait until May
7th for me to get these fee petitions in terms of looking at the
time that's been spent.
MR. SCARBOROUGH: No problem, Your Honor.
THE COURT: So I think that Mr. Ulwick's suggestion
makes sense. If counsel would just submit a joint letter to me
and make it part of the file, that it's agreed. If you'll just
send, this case has nationwide implications with counsel all over
the country, yet Mr. Ulwick and Ms. Woolf are separated by a few
floors on an elevator. I don't expect to see a lot of
transportation costs for Ulwick and Woolf, I'll tell you, in
terms of --
MR. ULWICK: You won't see any of those, Judge.
THE COURT: Electricity charges on the elevator. My
point is, if you all will just submit a joint letter noting that
in addition to the order I've signed today, that it's agreed that
counsel, although Tyson's doesn't take any stake in this and is
just standing by the sidelines on this, that plaintiffs will
submit the proposed attorney's fees and the schedule so I can be
ready by May 7th for it.
MR. ULWICK: Actually, it's already in the preliminary
order, Your Honor, because, the order that you just signed,
because that order said that we will file our final --
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THE COURT: Within 28 days?
MR. ULWICK: Within 28 days.
THE COURT: I saw a 28 day reference. Thank you.
Thank you. Thank you, Mr. Ulwick. Then we don't need to have an
additional letter. Madam Clerk, if you will just put on my
calendar, my personal calendar, April 9th will be the date by
which I will receive those papers from plaintiffs' counsel.
Okay. Anything further from the point of view of
plaintiffs' counsel?
MR. ULWICK: No thank you, Your Honor.
THE COURT: From defense counsel?
MS. WOOLF: No thank you, Your Honor.
THE COURT: I want to thank you all for the
thoroughness of your preparation. I don't want anyone to think
that my concern over attorney's fees in this case in any way
reflects the thorough quality of the lawyers involved here. It's
just, as I think Mr. Girard acknowledges, something that clearly
comes up that federal judges have to deal with in these kinds of
cases.
And I do want to thank particularly our local counsel,
Mr. Ulwick and Ms. Woolf, for working very hard on this and once
again reinforcing my strong belief that monthly status
conferences in these kinds of cases can be very helpful. It
absolutely sends my secretary to distraction. But it does, I
think, keep the cases moving.
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So with that, we stand adjourned. You all have a nice
weekend.
(Conclusion of Proceedings at 12:51 p.m.)
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REPORTER'S CERTIFICATE
I, Mary M. Zajac, do hereby certify that I recorded
stenographically the proceedings in the matter of In re: Tyson
Foods, Inc., Chicken Raised Without Antibiotics Consumer
Litigation, Case Number(s) MDL-08-1982, on January 15, 2010.
I further certify that the foregoing pages constitute
the official transcript of proceedings as transcribed by me to
the within matter in a complete and accurate manner.
In Witness Whereof, I have hereunto affixed my
signature this _____ day of ____________, 2010.
Mary M. Zajac,Official Court Reporter
$
$1,000 [1] - 39:13
$10 [6] - 8:7, 14:13,
16:18, 22:5, 32:10, 44:16
$20 [1] - 39:13
$20,000 [1] - 16:24
$5 [1] - 40:16
$50 [3] - 8:3, 16:13,
21:23
1
101 [1] - 1:23
10:00 [2] - 47:1, 47:4
11:30 [1] - 2:1
12:51 [1] - 52:3
15 [3] - 1:9, 24:4, 53:6
15% [1] - 9:7
19 [4] - 5:20, 47:20,
47:23, 48:3
1991 [1] - 11:15
1995 [1] - 22:14
19th [2] - 47:16, 48:2
2
2007 [1] - 5:20
2009 [1] - 5:22
2010 [6] - 1:9, 46:21,
47:20, 47:23, 53:6, 53:11
21201 [1] - 1:23
23 [3] - 4:21, 42:22
23(a [4] - 15:20, 17:16,
19:19, 20:4
23(a) [1] - 10:10
23(a)(2 [2] - 20:11,
20:18
23(a)(4) [1] - 21:5
23(b [2] - 15:22, 20:5
23(b)(3 [3] - 10:3, 11:3,
21:8
23(e [3] - 4:22, 27:22
23(e) [1] - 33:4
28 [3] - 51:1, 51:2, 51:3
3
3 [5] - 14:19, 27:10,
32:13, 38:23, 39:14
3.3 [1] - 28:11
4
4 [1] - 45:21
4.4 [6] - 14:18, 17:3,
27:6, 27:10, 28:13, 32:13
450,000 [1] - 12:8
5
5 [8] - 14:13, 16:20,
16:22, 22:6, 32:11,
38:22, 39:21, 44:16
50% [1] - 34:21
55 [1] - 22:14
5515 [1] - 1:22
6
6 [1] - 23:2
6-B [1] - 45:21
600,000 [1] - 17:3
7
768 [1] - 22:14
7th [8] - 46:21, 47:1,
47:4, 49:8, 49:15, 50:2,
50:4, 50:22
8
80% [1] - 35:3
9
9 [1] - 49:20
93 [1] - 22:24
94 [1] - 23:1
9th [1] - 51:6
A
a.m [1] - 2:1
able [7] - 3:9, 7:16,
26:5, 26:10, 28:5, 35:7,
37:9
absolutely [11] - 14:9,
17:5, 17:8, 23:24, 27:4,
29:4, 29:17, 34:9, 35:18,
39:3, 51:24
accept [1] - 25:15
acceptable [2] - 5:24,
46:22
accepting [1] - 35:2
accessible [1] - 13:6
accounts [2] - 16:12,
22:1
accurate [2] - 10:14,
53:9
accusing [1] - 23:5
acknowledge [1] -
16:14
acknowledges [1] -
51:17
acted [2] - 11:1, 11:20
acting [1] - 11:24
action [6] - 4:21, 6:5,
11:14, 17:21, 27:16, 39:9
actions [3] - 9:8, 10:25,
41:16
actual [1] - 37:2
add [1] - 17:13
addition [1] - 50:18
additional [2] - 17:4,
51:5
address [10] - 3:19,
4:14, 17:7, 18:4, 18:18,
28:17, 33:2, 35:14, 49:3,
50:2
addressed [2] - 22:12,
49:8
addresses [1] - 7:6
addressing [1] - 50:1
adequacy [12] - 10:20,
12:5, 12:6, 15:20, 16:9,
18:8, 20:25, 21:5, 21:18,
32:4, 34:13, 47:5
adequate [6] - 12:2,
12:13, 12:21, 13:25,
32:15, 34:23
adequately [1] - 21:4
adjourned [1] - 52:1
administration [1] - 9:1
administrative [3] -
14:18, 17:3, 27:9
administrator [2] -
40:13, 47:22
admonition [1] - 22:8
adopted [2] - 13:10,
48:12
ads [1] - 21:10
advance [1] - 14:2
advanced [1] - 12:7
adversaries [2] - 9:12,
43:20
advertised [1] - 5:11
advised [1] - 15:23
affected [1] - 32:16
Affinity [1] - 6:22
affixed [1] - 53:10
agenda [1] - 25:7
aggregate [1] - 38:20
ago [2] - 6:19, 25:17
agree [6] - 12:24, 14:24,
25:9, 33:6, 33:19, 43:7
agreeable [4] - 2:24,
46:12, 46:23, 49:22
agreed [10] - 5:18, 10:8,
13:20, 23:8, 31:19, 34:4,
37:11, 38:8, 50:9, 50:18
agreement [11] - 2:21,
2:23, 17:19, 17:20,
18:15, 22:21, 22:25,
26:24, 28:20, 31:25, 47:6
ahead [2] - 38:16, 48:9
Aid [1] - 9:19
aisle [1] - 21:2
allege [1] - 5:11
allegedly [1] - 20:22
allow [1] - 35:20
Amchem [1] - 10:5
amount [31] - 7:8,
10:24, 13:19, 13:20,
13:23, 13:25, 14:3,
17:23, 18:10, 21:19,
23:9, 33:23, 35:8, 37:21,
37:23, 38:7, 38:8, 38:20,
39:11, 39:12, 39:14,
40:22, 40:23, 41:5, 42:5,
42:10, 42:11, 43:3, 44:14
analysis [3] - 9:25,
10:2, 11:16
announce [1] - 3:9
answer [3] - 3:20, 13:9,
13:11
ANTIBIOTICS [1] - 1:5
Antibiotics [2] - 2:3,
53:5
antibiotics [4] - 4:17,
4:18, 20:24
antitrust [1] - 41:15
appeal [1] - 42:23
Appearances [1] - 1:14
Appendix [1] - 23:18
application [3] - 47:9,
48:13, 49:20
applies [3] - 8:14,
10:20, 12:6
apply [4] - 11:25, 12:12,
23:21, 38:7
appreciate [2] - 16:14,
28:19
approach [1] - 49:6
approaching [2] - 23:3,
37:20
appropriate [3] - 11:8,
11:10, 21:12
approval [32] - 2:20,
3:12, 3:17, 3:18, 4:25,
13:25, 20:1, 24:11,
24:19, 27:1, 27:22,
30:23, 31:24, 32:3,
32:19, 33:3, 33:5, 33:10,
33:20, 36:3, 36:16,
44:19, 44:23, 44:25,
45:6, 45:10, 46:2, 46:4,
46:10, 47:7, 48:24, 49:20
approve [7] - 4:22,
15:13, 17:12, 19:3,
23:25, 24:18, 42:4
54
approved [4] - 3:13,
23:19, 33:9, 49:15
approves [2] - 8:20
approving [3] - 24:18,
38:5, 38:10
April [8] - 5:22, 47:16,
47:20, 47:23, 48:2, 48:3,
49:20, 51:6
arduous [1] - 4:2
area [1] - 3:24
argument [4] - 7:24,
19:23, 26:10, 39:19
Arkansas [1] - 4:8
arm's [4] - 11:1, 11:20,
11:23, 13:22
ashamed [1] - 26:15
assert [1] - 5:9
assigned [3] - 4:6, 15:3,
29:23
assume [1] - 45:4
assuming [1] - 26:18
assure [1] - 30:12
attention [2] - 29:2,
37:17
attorney [1] - 31:12
attorney's [31] - 13:19,
17:5, 18:16, 22:20, 23:3,
23:12, 23:19, 24:12,
24:15, 24:16, 24:17,
24:18, 26:24, 27:11,
28:3, 28:23, 29:22,
29:25, 32:24, 32:25,
38:4, 38:7, 38:20, 40:23,
42:12, 44:21, 47:9, 49:7,
49:17, 50:21, 51:15
attorneys [1] - 35:9
Austin [2] - 2:15, 39:10
authority [1] - 27:22
authorize [1] - 23:6
automatic [1] - 42:23
available [2] - 8:13,
17:4
awaits [1] - 31:18
award [3] - 17:23, 23:9,
31:12
awarded [1] - 43:23
aware [5] - 9:21, 22:7,
24:4, 27:20, 39:24
B
b)(3 [1] - 19:19
backed [1] - 5:12
bags [1] - 41:24
balance [3] - 7:1, 7:15,
32:12
Baltimore [2] - 1:9, 1:23
Bank [2] - 27:9, 32:12
banner [1] - 21:10
based [5] - 9:1, 16:1,
29:8, 29:25, 41:8
basis [3] - 15:22, 16:5,
21:8
become [1] - 36:19
becomes [2] - 16:25,
32:14
beginning [1] - 5:21
behalf [4] - 2:10, 2:12,
2:14, 2:15
Behalf [2] - 1:15, 1:17
behold [1] - 32:7
belief [1] - 51:22
believes [1] - 21:22
below [1] - 29:13
benefit [2] - 8:23, 25:11
benefits [1] - 22:10
Bennett [1] - 1:11
best [5] - 8:18, 8:22,
11:25, 43:8, 48:12
better [1] - 43:16
between [7] - 19:2,
19:20, 20:15, 34:21,
38:19, 40:22, 42:9
beyond [1] - 7:13
big [2] - 25:19, 37:7
billing [2] - 14:6, 35:8
binding [3] - 16:6,
17:12, 33:16
bingo [1] - 28:11
bit [1] - 29:7
bluntly [1] - 29:22
board [1] - 35:4
bought [5] - 6:12, 6:19,
8:7, 9:16, 40:6
brief [1] - 23:2
bring [2] - 7:5, 39:9
built [1] - 42:23
burden [2] - 8:8, 14:15
burdensome [1] - 42:3
buy [2] - 40:7, 40:8
buyers [1] - 10:12
buying [1] - 21:22
C
calculated [1] - 28:9
calculating [1] - 23:12
calendar [2] - 51:6
California [1] - 9:19
candidly [1] - 16:13
candor [1] - 16:14
capped [1] - 8:7
car [1] - 40:5
cards [1] - 40:15
care [1] - 6:25
careful [1] - 27:22
carefully [4] - 24:7,
29:3, 34:23, 49:12
CASE [1] - 1:5
case [84] - 2:2, 2:20,
3:10, 4:23, 6:3, 6:10,
7:1, 7:5, 7:7, 8:10, 9:9,
9:10, 9:20, 10:15, 10:17,
11:13, 11:15, 11:16,
11:24, 12:8, 12:17, 13:2,
13:16, 14:20, 14:23,
14:24, 15:3, 15:4, 15:5,
15:14, 16:6, 17:14,
19:12, 21:21, 23:14,
24:3, 24:16, 24:17,
25:10, 25:11, 25:12,
25:19, 25:20, 25:22,
27:2, 28:16, 28:18, 29:8,
30:4, 31:12, 35:5, 36:5,
36:6, 36:15, 36:18,
36:21, 37:2, 37:6, 37:7,
37:18, 38:19, 39:10,
39:24, 40:1, 40:3, 40:4,
40:20, 41:7, 41:10,
41:13, 42:8, 42:16,
42:18, 42:20, 43:1, 44:1,
44:3, 44:9, 50:10, 51:15
Case [1] - 53:6
cases [27] - 3:14, 4:5,
4:6, 4:7, 4:10, 7:21,
9:14, 9:15, 9:17, 9:18,
9:24, 17:21, 17:25, 18:1,
18:2, 18:3, 22:13, 29:21,
31:17, 41:15, 41:20,
51:19, 51:23, 51:25
cash [3] - 6:16, 6:19,
40:14
caution [1] - 37:19
cent [1] - 26:19
Center [2] - 9:6, 13:9
center [1] - 19:15
certain [1] - 17:23
certainly [17] - 4:20,
8:8, 16:1, 16:2, 17:18,
18:17, 19:10, 20:5,
20:18, 20:20, 27:14,
28:24, 32:3, 33:19,
35:16, 37:11, 44:2
certifiability [4] - 16:7,
17:11, 18:21, 21:16
CERTIFICATE [1] - 53:1
certification [17] - 9:18,
10:1, 10:9, 11:7, 11:8,
15:18, 15:22, 16:3, 18:6,
18:25, 19:6, 19:16,
19:25, 21:14, 25:20,
37:2, 37:3
certified [7] - 7:22, 9:8,
9:10, 9:14, 9:22, 25:20,
28:18
certify [4] - 5:2, 9:23,
53:3, 53:7
certifying [1] - 42:21
challenge [2] - 7:15,
12:15
challenges [1] - 42:22
challenging [1] - 9:9
change [1] - 43:15
charge [3] - 16:11, 22:1,
26:17
charged [1] - 30:7
charges [1] - 50:16
check [3] - 40:11, 40:12
checks [1] - 32:11
CHICKEN [1] - 1:5
Chicken [6] - 2:3,
14:22, 20:16, 53:5
chicken [9] - 4:16, 6:19,
10:14, 10:22, 20:23,
21:23, 40:7
Circuit [9] - 11:13, 18:1,
18:2, 22:12, 22:14, 37:1,
40:2, 40:3
circumstances [3] -
13:3, 37:21, 42:17
cited [2] - 9:18, 39:25
Civil [1] - 36:20
CIVIL [1] - 1:5
claim [9] - 5:10, 6:1,
7:9, 8:13, 12:19, 13:18,
42:1, 42:3, 43:4
claims [11] - 6:7, 6:8,
8:14, 8:17, 8:21, 9:1,
12:23, 13:8, 20:17,
20:19, 43:6
class [66] - 2:23, 3:7,
3:16, 3:17, 4:15, 4:21,
5:2, 5:4, 5:6, 5:8, 5:9,
5:13, 5:18, 6:5, 7:22,
7:23, 9:7, 9:16, 9:18,
10:7, 10:11, 10:15,
10:18, 10:25, 11:6,
11:11, 11:14, 11:18,
15:18, 16:4, 16:8, 16:18,
17:11, 17:18, 17:21,
18:6, 18:22, 19:16,
19:17, 19:19, 20:1, 20:3,
20:7, 20:12, 20:14,
20:19, 21:4, 21:15,
21:17, 22:9, 25:19,
27:15, 33:11, 33:14,
37:21, 38:6, 39:8, 40:23,
41:16, 42:21, 43:2, 44:6,
47:8, 47:13, 47:14, 48:15
classes [3] - 9:7, 9:21,
9:23
clause [3] - 17:22, 23:8,
34:10
clauses [1] - 31:18
clean [1] - 5:7
clear [16] - 9:16, 17:19,
17:20, 17:22, 23:7, 23:8,
27:1, 29:6, 30:24, 31:17,
34:10, 36:2, 36:5, 36:7,
44:13, 44:18
clearly [7] - 6:11, 17:13,
17:16, 20:12, 24:2,
28:21, 51:17
Clerk [2] - 48:21, 51:5
CLERK [1] - 2:2
clerk [2] - 29:23, 30:8
client [3] - 38:21, 39:7,
39:12
client's [1] - 11:25
clients [2] - 6:4, 42:7
close [6] - 15:11, 27:23,
29:2, 30:10, 30:17, 43:14
CNN.com [1] - 21:11
coextensive [1] - 5:8
comfortable [1] - 43:10
coming [2] - 20:22,
41:24
comment [2] - 39:7,
48:16
comments [2] - 38:2,
38:14
committing [1] - 34:15
common [11] - 9:24,
10:12, 20:5, 20:10,
20:12, 41:2, 41:7, 41:13,
41:14, 41:16, 44:9
commonality [2] -
15:20, 20:11
compare [1] - 39:21
compared [1] - 39:14
compelling [1] - 37:12
compensating [1] -
13:4
competitor [1] - 25:12
complaining [1] - 5:25
complaint [1] - 5:5
complete [2] - 12:17,
53:9
Complex [4] - 17:25,
22:15, 38:25, 48:11
complicate [1] - 14:24
complicated [9] -
14:23, 15:3, 15:5, 17:15,
23:15, 36:8, 36:9, 36:19,
36:22
complied [1] - 11:21
compromise [2] - 4:23,
13:22
computer [1] - 26:4
conceivably [1] - 5:9
concern [8] - 6:2,
18:13, 34:20, 35:11,
42:21, 43:23, 43:25,
51:15
concerned [8] - 6:6,
6:7, 18:3, 22:5, 38:5,
44:7, 44:12, 44:13
concerns [1] - 43:17
55
conclude [1] - 12:16
conclusion [1] - 52:3
conclusions [1] - 27:25
concurred [1] - 16:4
conditional [4] - 15:17,
16:3, 18:5, 21:14
conference [1] - 25:6
conferences [4] - 24:3,
24:4, 44:3, 51:23
conflicts [1] - 11:19
conjecture [1] - 21:25
connection [2] - 36:15,
43:24
consider [2] - 19:1,
40:18
considerable [1] -
10:24
consideration [2] -
23:20, 43:2
considered [1] - 10:3
constitute [1] - 53:7
consumed [1] - 20:23
CONSUMER [1] - 1:5
consumer [6] - 9:23,
39:8, 40:10, 41:16,
41:20, 41:21
Consumer [2] - 2:4,
53:5
consumers [9] - 8:24,
13:1, 13:6, 14:13, 18:10,
22:3, 27:18, 37:16, 40:14
contest [2] - 31:19,
34:16
context [1] - 10:4
continue [1] - 21:5
contribute [1] - 33:22
contributions [1] - 27:8
conundrum [1] - 32:4
convenient [1] - 40:14
copied [1] - 49:13
copies [2] - 48:21,
48:22
correct [13] - 6:16, 6:17,
28:7, 31:25, 33:21,
36:10, 46:5, 46:6, 46:9,
46:13, 46:18, 47:10,
47:23
cost [1] - 40:16
costs [5] - 14:18, 18:16,
27:9, 40:12, 50:13
counsel [24] - 2:5, 3:25,
9:17, 13:16, 15:25, 21:1,
21:2, 21:3, 21:4, 23:5,
23:21, 24:2, 24:4, 25:3,
25:17, 44:3, 50:8, 50:10,
50:19, 51:7, 51:9, 51:11,
51:20
counsel's [1] - 47:9
counter [1] - 26:10
country [2] - 11:1,
50:11
couple [3] - 13:12, 38:2,
38:14
coupon [11] - 8:14,
14:13, 16:20, 16:22,
22:6, 38:23, 39:23, 40:4,
40:5, 40:6, 40:13
coupons [3] - 22:11,
32:11, 44:16
course [1] - 5:5
Court [35] - 2:2, 2:19,
3:11, 3:20, 4:22, 5:2,
10:5, 11:15, 11:22,
13:12, 13:16, 15:13,
19:3, 19:9, 19:14, 19:20,
22:16, 26:15, 27:21,
33:20, 33:21, 34:7,
35:19, 36:18, 37:1, 37:4,
37:7, 37:8, 38:3, 38:5,
38:14, 42:13, 47:5,
48:18, 53:16
COURT [79] - 1:1, 2:5,
2:9, 2:17, 3:1, 4:4, 4:12,
5:20, 6:10, 6:18, 6:21,
14:5, 14:8, 14:11, 15:1,
15:7, 15:9, 17:8, 19:5,
19:21, 26:21, 27:5,
27:21, 28:9, 29:15,
29:17, 30:9, 30:12, 31:3,
31:6, 31:15, 32:2, 32:9,
32:21, 33:17, 34:3, 34:5,
34:9, 35:18, 35:22, 36:7,
37:24, 38:16, 38:25,
39:5, 40:1, 41:12, 43:21,
45:5, 45:10, 45:16,
45:19, 45:22, 46:8,
46:14, 46:17, 46:19,
46:23, 46:25, 47:4,
47:12, 47:18, 47:20,
47:25, 48:3, 48:6, 48:9,
48:14, 48:20, 49:2, 49:5,
49:22, 50:1, 50:7, 50:16,
51:1, 51:3, 51:11, 51:13
court [6] - 7:3, 12:3,
19:2, 23:16, 23:18, 23:20
Court's [5] - 5:1, 34:7,
34:11, 36:11, 36:16
Courthouse [1] - 1:22
courts [3] - 9:23, 11:1,
41:1
criteria [5] - 15:19,
17:16, 17:17, 20:4, 20:11
cut [4] - 15:15, 19:22,
20:9, 28:14
Cutsail [2] - 4:7, 20:20
cy [1] - 42:4
D
damage [1] - 39:22
Daniel [2] - 1:16, 2:8
data [2] - 24:22, 33:12
date [8] - 5:12, 6:1,
46:20, 47:15, 47:17,
47:25, 49:9, 51:6
dates [4] - 46:6, 46:11,
47:17, 48:6
Davis [4] - 1:19, 2:15,
2:18, 17:10
DAVIS [1] - 2:15
days [2] - 51:1, 51:2
deadline [1] - 48:15
deal [2] - 31:16, 51:18
dealing [2] - 25:8, 32:5
deathly [1] - 20:22
debates [1] - 39:16
debit [1] - 40:15
decide [2] - 11:10, 41:4
decision [3] - 10:5,
24:21, 31:2
decline [1] - 9:23
Defendant [1] - 1:17
defendant [2] - 2:24,
17:23
defendant's [1] - 22:11
defendants [11] - 2:10,
3:25, 6:6, 10:8, 10:17,
12:24, 16:4, 16:6, 38:8,
46:9, 46:23
defense [4] - 7:25, 11:7,
15:25, 51:11
defenses [1] - 9:11
defined [1] - 5:4
definite [1] - 14:15
definition [3] - 5:6,
5:19, 47:12
delegate [2] - 30:2,
49:12
delivery [1] - 26:2
demonstrate [2] -
36:17, 37:10
demonstrates [1] -
37:18
deposed [1] - 10:16
deposition [3] - 30:16,
30:20
depositions [3] - 10:21,
12:9, 24:5
despite [2] - 8:21, 37:13
detail [1] - 3:22
determination [3] - 5:1,
33:15, 41:9
determine [3] - 44:21,
47:7, 49:6
developed [2] - 13:10,
37:17
DeVries [1] - 2:12
difference [1] - 8:25
different [3] - 8:17,
10:2, 40:24
difficulties [1] - 36:25
difficulty [9] - 15:17,
15:24, 16:23, 16:25,
20:2, 21:9, 21:15, 22:18,
35:2
discount [1] - 22:11
discovery [1] - 29:20
discuss [3] - 2:23, 6:14,
46:11
discussed [1] - 13:20
discussion [1] - 23:1
dismissal [1] - 3:14
disparity [1] - 38:19
disposition [1] - 50:2
disproportionate [3] -
17:6, 18:13, 32:24
dispute [4] - 10:11,
10:12, 15:6, 25:2
disputes [2] - 25:1, 25:4
disrespect [1] - 31:10
distracted [1] - 49:24
distraction [1] - 51:24
distribute [2] - 12:15,
41:4
distributed [1] - 27:6
distribution [11] - 5:14,
14:19, 17:4, 21:19,
28:23, 32:10, 33:25,
42:4, 44:6, 44:14, 44:15
distributions [1] -
44:16
District [1] - 4:8
DISTRICT [2] - 1:1, 1:1
district [1] - 4:5
divides [1] - 11:16
DIVISION [1] - 1:2
Document [2] - 22:24,
22:25
document [2] - 14:1,
14:10
documents [2] - 12:8,
26:1
dollar [8] - 8:14, 17:1,
22:21, 22:22, 28:23,
34:18, 39:10, 39:18
dollars [40] - 14:6,
14:14, 14:17, 14:19,
15:10, 15:14, 17:2,
18:11, 18:16, 23:4, 23:7,
24:6, 27:6, 27:10, 27:11,
28:3, 28:12, 30:25, 31:9,
31:20, 32:7, 32:23,
33:24, 34:10, 34:11,
34:15, 35:6, 35:10, 38:8,
38:23, 39:14, 40:12,
41:3, 41:20, 42:2, 43:14,
44:24
donate [1] - 8:25
donation [1] - 9:2
done [17] - 3:23, 5:5,
7:19, 12:22, 13:5, 15:19,
15:23, 24:23, 25:22,
26:12, 26:21, 29:8, 29:9,
40:15, 41:19, 48:12,
49:16
doubt [2] - 21:3, 27:7
doubts [1] - 15:13
down [2] - 8:5, 35:14
dozen [1] - 12:9
drawing [1] - 35:3
dried [1] - 20:9
drives [1] - 6:12
due [1] - 11:20
duplication [1] - 30:15
E
easier [1] - 13:7
easy [2] - 6:8, 12:23
Eckerhart [1] - 13:17
economic [1] - 39:18
educated [1] - 31:7
effect [1] - 9:2
effort [3] - 8:5, 30:15,
31:9
efforts [1] - 8:22
eight [12] - 3:14, 4:5,
4:9, 17:1, 18:11, 22:22,
32:23, 33:23, 34:14,
34:17, 35:6, 41:3
Eight [1] - 47:10
either [5] - 4:17, 11:8,
17:10, 27:7, 36:25
electing [1] - 36:14
electricity [1] - 50:16
electronic [1] - 8:14
elements [3] - 9:24,
10:9, 19:10
elevator [2] - 50:12,
50:16
eligible [1] - 16:24
embarrassed [1] - 45:8
emphatic [1] - 35:7
encompass [1] - 5:19
encompassed [1] -
20:19
end [5] - 5:12, 5:21,
7:10, 25:13, 26:18
ended [1] - 25:5
ends [1] - 40:13
entirely [1] - 12:21
entitled [2] - 11:25, 29:7
entitlement [2] - 13:15,
35:9
environment [1] - 7:21
Esquire [5] - 1:15, 1:16,
1:18, 1:18, 1:19
essentially [3] - 4:5,
16:25, 34:14
56
estimating [1] - 8:6
evaluating [2] - 9:20,
11:14
eventually [1] - 28:17
evidence [4] - 36:20,
37:13, 37:18, 42:13
exactly [2] - 35:22, 44:5
example [2] - 5:15,
40:15
exceed [1] - 23:4
excellent [1] - 3:16
exclude [1] - 47:13
exclusion [2] - 47:14,
47:21
exercising [1] - 27:22
exhaustive [1] - 32:6
exhibit [1] - 45:16
Exhibit [4] - 31:24,
32:2, 45:17, 46:3
expand [1] - 5:18
expect [2] - 24:20,
50:12
expected [1] - 28:1
expenses [3] - 17:3,
44:21, 47:9
experience [5] - 3:24,
10:24, 12:11, 30:1, 42:25
experienced [3] - 21:1,
21:3, 22:7
expert [1] - 4:1
extensive [2] - 3:21,
23:25
extracted [1] - 36:14
eyes [1] - 22:19
F
F.3d [1] - 22:14
facing [1] - 9:8
fact [10] - 9:15, 10:13,
12:9, 20:6, 20:10, 20:12,
20:23, 39:23, 42:22,
44:20
factor [1] - 22:16
factors [1] - 20:3
facts [1] - 33:13
fair [9] - 3:10, 4:3,
11:18, 11:23, 13:22,
27:19, 32:14, 34:22,
39:11
fairly [3] - 3:21, 20:9,
20:19
fairness [22] - 5:1,
11:14, 12:4, 16:8, 18:7,
21:17, 29:1, 32:3, 32:15,
33:2, 34:13, 35:2, 36:11,
42:10, 42:15, 43:22,
44:20, 44:21, 46:19, 47:5
falsely [1] - 5:11
familiar [6] - 14:20,
15:4, 29:21, 40:4, 44:4,
45:7
familiarity [4] - 20:14,
21:20, 23:14, 29:18
far [2] - 38:3, 38:4
Farms [2] - 41:11, 42:19
favorable [2] - 8:9, 13:1
federal [5] - 22:8, 30:6,
30:7, 39:2, 51:18
Federal [2] - 9:6, 13:9
fee [15] - 13:14, 13:15,
13:20, 13:25, 14:4,
17:23, 23:9, 26:16,
31:12, 41:9, 42:10,
43:11, 48:13, 49:20, 50:4
feed [1] - 9:3
fees [45] - 13:19, 14:14,
14:20, 15:10, 15:14,
17:5, 18:16, 22:20, 23:3,
23:12, 23:19, 23:25,
24:6, 24:12, 24:16,
24:17, 24:18, 26:16,
26:24, 27:11, 28:3,
28:23, 29:22, 29:25,
30:25, 32:24, 32:25,
34:11, 34:17, 35:10,
38:4, 38:7, 38:20, 40:23,
42:12, 43:23, 44:17,
44:21, 47:9, 49:7, 49:17,
50:21, 51:15
few [6] - 6:20, 8:2, 8:21,
16:11, 18:1, 50:11
field [2] - 12:11, 22:7
fight [1] - 25:15
figure [5] - 14:17,
18:13, 22:5, 33:24, 38:18
figures [1] - 22:18
file [5] - 12:23, 13:7,
49:19, 50:9, 50:25
filed [3] - 3:22, 9:8,
48:22
filing [1] - 48:12
final [11] - 3:18, 33:10,
33:12, 33:15, 35:1,
36:15, 45:13, 47:7,
49:20, 50:2, 50:25
findings [1] - 18:5
fine [7] - 2:25, 18:9,
29:4, 30:21, 47:1, 47:3
finish [2] - 15:1, 15:7
finished [1] - 48:6
firm [4] - 9:17, 28:6,
31:10
firms [3] - 28:7, 31:11,
34:22
first [14] - 2:22, 4:14,
4:19, 4:24, 15:15, 17:11,
18:19, 18:21, 36:13,
38:3, 38:19, 46:14, 46:16
Five [1] - 48:1
five [7] - 8:14, 14:17,
17:2, 22:21, 34:9, 34:15,
40:12
flip [1] - 39:8
floors [1] - 50:12
focus [1] - 43:19
folks [1] - 10:23
follow [1] - 25:13
Food [3] - 2:3, 27:9,
32:12
Foods [1] - 53:5
FOODS [1] - 1:4
FOR [1] - 1:1
forceful [1] - 19:4
foregoing [1] - 53:7
form [2] - 13:8, 45:17
format [1] - 13:9
forth [2] - 15:21, 36:20
forward [10] - 7:23,
16:17, 17:2, 20:22,
21:23, 22:2, 22:4, 23:22,
33:1, 48:18
Four [1] - 47:10
Fourth [3] - 11:12, 18:2,
37:1
frankly [1] - 37:16
fraudulent [1] - 6:8
Friday [4] - 1:9, 46:25,
47:1, 47:4
front [6] - 19:15, 24:23,
33:13, 33:14, 42:14
frozen [1] - 5:15
Fuel [1] - 22:13
full [4] - 8:3, 19:15,
33:11, 33:22
fulsome [1] - 37:22
function [1] - 42:11
fund [10] - 17:1, 22:22,
33:23, 34:18, 41:2, 41:7,
41:13, 41:14, 41:16, 44:9
fundamental [2] -
43:21, 43:22
furthermore [1] - 47:21
G
general [4] - 2:21,
22:25, 27:16, 27:17
General [7] - 6:11, 6:12,
9:4, 22:13, 40:1
generally [1] - 41:12
generous [1] - 43:6
Giant [1] - 26:6
Gibbs [1] - 2:8
GIRARD [34] - 4:20,
5:21, 6:17, 6:20, 6:22,
14:7, 14:9, 14:24, 15:6,
15:8, 17:7, 38:1, 38:17,
39:3, 39:6, 40:3, 41:14,
45:2, 45:7, 45:15, 45:17,
45:21, 46:6, 46:16,
46:18, 46:21, 47:3,
47:11, 47:16, 47:24,
48:4, 48:8, 48:10, 48:15
Girard [22] - 1:16, 2:8,
2:10, 3:6, 3:19, 3:24,
4:13, 14:20, 19:22, 22:6,
23:10, 31:7, 33:6, 37:25,
39:2, 46:5, 47:10, 47:23,
48:9, 49:6, 51:17
Girard's [2] - 28:6,
31:10
giveaway [1] - 12:25
given [7] - 12:7, 13:3,
15:11, 21:20, 29:18,
42:25, 49:11
glad [2] - 3:1, 4:12
goal [1] - 6:8
Goodell [1] - 2:12
Graham [1] - 2:8
grant [1] - 3:16
granted [3] - 14:22,
31:12, 47:8
granting [1] - 22:9
great [5] - 7:11, 20:14,
22:18, 29:18, 31:15
greater [1] - 40:17
greatest [1] - 37:13
groceries [1] - 41:24
grocery [3] - 21:23,
22:1, 26:2
ground [1] - 25:23
grounds [1] - 10:19
guess [3] - 4:20, 13:11,
38:3
guessing [1] - 44:7
guidelines [1] - 23:18
H
half [2] - 21:24, 43:14
hand [8] - 6:5, 7:17,
9:22, 12:3, 12:5, 30:18
handled [1] - 20:15
hands [5] - 6:4, 25:24,
40:10, 42:6, 43:2
happy [3] - 13:11,
36:17, 41:21
hard [8] - 6:4, 8:16,
24:5, 25:4, 25:23, 28:19,
39:9, 51:21
hard-pressed [1] - 24:5
hear [9] - 3:1, 4:13,
15:24, 17:10, 23:10,
24:9, 24:14, 48:18, 49:17
heard [6] - 10:16, 18:22,
25:18, 38:1, 39:7
hearing [18] - 2:4, 3:18,
17:24, 18:17, 28:24,
29:1, 29:7, 31:15, 32:15,
33:2, 33:10, 33:12, 35:2,
35:25, 44:20, 46:19,
47:5, 49:15
help [1] - 35:4
helped [1] - 3:25
helpful [1] - 51:23
Hensley [1] - 13:17
hereby [1] - 53:3
hereunto [1] - 53:10
high [1] - 27:12
higher [1] - 18:10
highly [1] - 21:1
hold [5] - 45:11, 45:19,
46:25, 47:5, 49:6
holder [1] - 34:1
home [1] - 41:24
Honor [53] - 2:7, 2:11,
2:13, 3:5, 3:6, 3:14,
3:19, 4:20, 8:19, 14:9,
17:7, 18:24, 19:9, 19:17,
24:15, 24:24, 24:25,
25:1, 25:9, 25:12, 28:10,
29:5, 29:6, 29:11, 31:2,
33:7, 33:19, 34:2, 35:16,
36:4, 36:9, 37:4, 37:19,
38:1, 39:3, 41:8, 43:17,
45:3, 45:15, 46:13,
46:24, 47:11, 47:19,
47:24, 48:5, 48:8, 49:1,
49:4, 49:24, 50:6, 50:24,
51:10, 51:12
Honor's [2] - 3:21,
25:12
Honorable [1] - 1:11
hope [3] - 3:16, 24:20,
38:12
hoped [1] - 37:14
hopes [1] - 37:13
hour [3] - 30:2, 30:13
hourly [5] - 14:3, 14:6,
23:19, 26:18, 35:8
humans [1] - 4:18
hundred [2] - 41:20,
42:1
Hyundai [1] - 9:19
I
i.e [2] - 4:15, 6:16
Idaho [1] - 4:9
idea [1] - 5:13
identifiable [1] - 17:17
identified [1] - 10:9
identify [2] - 2:5, 9:16
ill [1] - 20:23
illusory [1] - 22:10
57
impact [1] - 4:18
implicates [1] - 11:4
implication [1] - 11:12
implications [2] - 28:2,
50:10
important [3] - 27:13,
34:19, 36:2
imposed [1] - 14:16
impractical [1] - 20:9
impressed [1] - 21:12
impression [1] - 24:22
imprimatur [1] - 38:9
IN [2] - 1:1, 1:4
inappropriate [1] - 19:7
Inc [2] - 2:3, 53:5
INC [1] - 1:4
incentive [2] - 16:24,
18:9
inclined [1] - 23:21
includes [1] - 6:15
including [2] - 3:22,
48:13
incorporated [1] -
13:13
indeed [2] - 22:6, 22:15
indicate [5] - 9:6, 16:2,
26:25, 35:2, 49:15
individual [5] - 38:21,
39:12, 40:24, 41:5, 41:22
inexpensive [1] - 40:9
inform [1] - 36:11
informed [2] - 11:24,
34:6
initial [1] - 14:21
injunction [1] - 14:22
injured [1] - 37:22
inquiry [3] - 16:8, 18:7,
21:17
instruct [1] - 39:1
interest [5] - 11:25,
13:23, 13:24, 42:5, 48:16
Internet [1] - 21:10
interpret [1] - 17:2
involved [2] - 24:24,
51:16
ironic [1] - 9:4
issue [8] - 11:3, 19:1,
19:7, 19:18, 19:20,
32:14, 42:12, 44:8
issue's [1] - 40:25
issues [10] - 10:13,
19:17, 19:19, 20:6,
20:10, 25:6, 25:8, 36:13,
36:17, 42:16
itself [5] - 12:14, 31:15,
43:18, 45:16, 46:4
J
James [2] - 1:15, 2:7
January [2] - 1:9, 53:6
Jersey [2] - 4:9, 9:19
Jiffy [2] - 11:15, 11:16
job [1] - 15:19
joinder [1] - 20:8
joint [2] - 50:8, 50:17
judge [2] - 30:6, 44:4
Judge [3] - 1:11, 23:6,
50:15
judge's [1] - 30:7
judges [5] - 22:8, 23:20,
39:2, 39:7, 51:18
judgment [2] - 36:11,
45:13
Judicial [2] - 9:6, 13:9
judicial [1] - 38:9
jumping [1] - 27:25
June [1] - 5:20
K
keep [6] - 21:22, 24:11,
25:25, 29:20, 38:12,
51:25
kept [1] - 24:2
kids [1] - 41:24
kind [4] - 6:5, 8:18,
31:12, 40:8
kinds [3] - 31:17, 51:18,
51:23
knock [1] - 10:18
knowing [1] - 31:9
knows [1] - 24:1
Kramon [1] - 2:8
Kranish [2] - 4:7, 20:20
L
labeling [2] - 10:13,
10:14
labels [1] - 37:8
large [1] - 42:5
last [3] - 9:7, 9:14, 43:7
law [10] - 9:9, 10:13,
13:3, 20:6, 20:10, 20:12,
29:23, 30:8, 31:11, 34:21
lawyer [1] - 30:19
lawyers [12] - 10:23,
11:19, 11:24, 12:11,
27:18, 28:14, 30:19,
38:6, 38:24, 39:9, 40:25,
51:16
lays [1] - 3:22
lead [3] - 3:7, 4:6, 31:9
least [3] - 16:21, 20:4
legal [13] - 14:14, 14:20,
15:10, 15:14, 23:25,
24:6, 30:25, 34:11,
34:16, 35:10, 43:23,
44:17
lend [1] - 41:16
length [4] - 11:1, 11:20,
11:23, 13:22
lengthy [1] - 10:21
less [5] - 14:18, 17:2,
26:17, 26:20, 39:18
letter [3] - 50:8, 50:17,
51:5
level [4] - 8:21, 12:20,
16:13, 42:21
liability [5] - 7:22, 9:11,
11:8, 11:10, 25:10
life [1] - 5:15
light [6] - 18:11, 20:15,
22:20, 27:5, 33:1, 44:14
limit [1] - 8:3
Linda [2] - 1:18, 2:11
lines [1] - 23:2
listed [1] - 20:3
lists [1] - 38:25
literally [1] - 30:3
litigate [1] - 12:17
litigated [2] - 11:6,
28:16
litigating [2] - 7:4,
10:25
LITIGATION [1] - 1:6
litigation [6] - 4:5, 7:21,
13:18, 14:21, 20:15, 40:4
Litigation [7] - 2:4,
18:1, 22:14, 22:15,
38:25, 48:11, 53:6
live [1] - 38:17
living [1] - 40:19
lo [1] - 32:7
local [4] - 23:17, 24:2,
51:20
lodestar [9] - 23:13,
23:16, 23:18, 23:21,
27:13, 28:10, 35:8, 41:8,
44:11
lodestar-based [1] -
41:8
logical [1] - 5:3
logistics [1] - 49:10
Lombard [1] - 1:23
look [12] - 12:13, 22:20,
29:2, 30:12, 30:13, 32:9,
32:13, 34:12, 36:18,
39:17, 39:22, 49:12
looking [11] - 7:24, 8:9,
13:1, 30:5, 31:22, 42:25,
44:22, 45:10, 46:10,
46:14, 50:4
looks [5] - 11:18, 12:3,
12:5, 27:15, 38:22
loss [1] - 12:17
low [3] - 8:21, 22:19
lower [1] - 10:2
loyalty [1] - 26:6
Lube [2] - 11:15, 11:16
M
Madam [2] - 48:21, 51:5
mailed [1] - 47:22
main [1] - 11:17
maintain [2] - 6:23,
24:20
major [1] - 13:18
majority [1] - 7:11
manageability [4] -
10:2, 11:5, 19:7, 36:13
manner [1] - 53:9
Manual [4] - 17:25,
22:15, 38:25, 48:11
map [1] - 25:13
marshal [1] - 36:21
Mart [1] - 26:7
Mary [3] - 1:22, 53:3,
53:15
MARYLAND [1] - 1:1
Maryland [5] - 1:9, 1:23,
4:6, 20:20, 21:2
master [1] - 5:5
matched [1] - 14:19
matter [30] - 6:2, 16:10,
16:25, 17:11, 18:7,
19:25, 22:20, 23:3,
24:12, 24:15, 25:14,
29:1, 31:21, 32:3, 34:12,
35:12, 36:2, 37:11,
39:11, 42:3, 44:5, 44:14,
44:21, 48:24, 49:7, 50:1,
53:4, 53:9
matters [4] - 23:1,
27:15, 29:19, 41:21
MDL [1] - 3:15
MDL-08-01982 [1] - 2:4
MDL-08-1982 [2] - 1:6,
53:6
mean [8] - 5:8, 15:15,
25:25, 28:17, 30:3, 31:6,
39:7, 45:5
means [1] - 25:14
meant [1] - 26:1
meet [1] - 47:12
meets [1] - 21:7
member [1] - 16:19
members [8] - 7:23,
9:17, 20:8, 22:9, 28:14,
43:2, 45:24, 48:15
memo [1] - 23:2
memorandum [4] - 3:2,
15:18, 22:23, 31:23
memory [1] - 45:8
mention [2] - 13:12,
19:8
mentioned [8] - 3:21,
9:4, 12:14, 20:14, 25:17,
25:24, 33:22, 36:5
mentioning [1] - 9:6
merely [3] - 23:8, 26:24,
44:19
merits [3] - 15:6, 37:2,
42:16
method [10] - 23:13,
23:16, 23:21, 27:12,
27:13, 35:8, 41:13, 44:11
methodology [1] -
41:17
methods [1] - 23:12
Michael [2] - 1:19, 2:15
micromanage [1] - 44:1
might [4] - 5:16, 17:3,
35:3, 36:18
million [50] - 14:6,
14:14, 14:17, 14:18,
14:19, 15:9, 15:14, 17:1,
17:2, 17:3, 17:4, 18:11,
18:16, 22:21, 22:22,
23:4, 23:7, 24:6, 27:6,
27:10, 27:11, 28:3,
28:12, 28:13, 28:22,
30:25, 31:8, 31:20, 32:7,
32:13, 32:23, 33:23,
34:10, 34:11, 34:14,
34:15, 34:17, 34:18,
35:6, 35:10, 38:7, 38:23,
39:10, 39:14, 41:3,
41:20, 42:2, 43:14, 44:24
mind [2] - 24:21, 38:13
mindful [1] - 42:22
minimal [1] - 8:5
minimize [1] - 13:23
minimum [1] - 9:2
minute [2] - 25:17, 30:6
missing [1] - 44:23
mistaken [1] - 4:12
modest [2] - 7:8, 8:8
moment [4] - 14:16,
15:10, 15:25, 28:5
monetary [2] - 21:18,
22:10
money [11] - 6:4, 12:15,
12:19, 27:17, 28:4, 37:5,
39:11, 40:10, 41:5, 42:5,
42:6
month [1] - 49:21
monthly [3] - 24:3,
44:3, 51:22
months [3] - 8:21,
12:10, 43:7
58
morning [8] - 2:7, 2:9,
2:11, 2:13, 19:8, 47:2,
49:3
most [4] - 9:15, 13:2,
25:4, 41:15
motion [5] - 2:19,
31:23, 46:1, 48:25
Motors [7] - 6:11, 6:12,
9:4, 22:13, 40:1
moving [1] - 51:25
MR [76] - 2:7, 2:13,
2:15, 2:25, 3:5, 4:11,
4:20, 5:21, 6:17, 6:20,
6:22, 14:7, 14:9, 14:24,
15:6, 15:8, 17:7, 18:24,
19:6, 24:15, 27:4, 27:20,
28:8, 29:4, 29:16, 30:5,
30:11, 31:1, 31:4, 31:14,
32:1, 32:8, 32:20, 33:7,
33:19, 34:4, 34:6, 35:16,
35:19, 36:4, 36:9, 38:1,
38:17, 39:3, 39:6, 40:3,
41:14, 45:2, 45:7, 45:15,
45:17, 45:21, 46:6,
46:13, 46:16, 46:18,
46:21, 46:24, 47:3,
47:11, 47:16, 47:19,
47:24, 48:2, 48:4, 48:8,
48:10, 48:15, 49:1,
49:19, 49:24, 50:6,
50:15, 50:23, 51:2, 51:10
MS [3] - 2:11, 49:4,
51:12
multi [3] - 4:5, 8:18,
39:10
multi-district [1] - 4:5
multi-million [1] - 39:10
multi-option [1] - 8:18
must [3] - 47:14, 47:21,
47:22
N
named [1] - 16:23
national [1] - 21:3
nationwide [1] - 50:10
necessarily [1] - 27:19
need [13] - 7:6, 7:23,
17:8, 19:24, 23:10, 25:2,
30:6, 35:14, 36:15,
43:10, 43:19, 49:3, 51:4
needs [1] - 26:25
negotiate [1] - 35:21
negotiated [5] - 7:19,
8:4, 8:24, 13:23, 13:24
negotiating [1] - 43:7
negotiation [4] - 3:7,
5:6, 9:12, 11:23
negotiations [2] - 4:3,
12:10
negotiator [2] - 3:7, 6:3
net [1] - 14:18
never [1] - 12:24
new [1] - 40:5
New [2] - 4:9, 9:19
next [2] - 47:10, 47:25
nice [3] - 2:10, 2:17,
52:1
Nine [1] - 48:1
NO [1] - 1:5
nobody [1] - 40:11
non [1] - 22:10
non-monetary [1] -
22:10
none [2] - 6:21, 47:19
normal [1] - 26:20
normally [1] - 26:17
NORTHERN [1] - 1:2
note [5] - 4:4, 6:13,
22:23, 44:19, 48:4
noted [2] - 20:13, 49:11
notes [2] - 18:15, 44:2
nothing [4] - 25:16,
33:16, 46:4, 49:1
notice [26] - 3:17, 8:20,
11:21, 13:8, 15:23, 18:8,
21:10, 21:13, 24:10,
27:2, 28:25, 31:21,
32:21, 33:11, 38:6,
38:10, 41:25, 43:14,
45:2, 45:6, 45:7, 45:16,
45:17, 45:18, 45:23,
45:24
noting [1] - 50:17
notion [4] - 14:13,
22:18, 27:6, 31:8
Number [2] - 22:24,
22:25
number [1] - 9:23
Number(s [1] - 53:6
numerosity [2] - 15:20,
20:7
numerous [2] - 10:11,
20:8
O
oath [1] - 8:6
object [3] - 17:23,
18:15, 23:9
objecting [2] - 34:10,
44:24
objection [3] - 29:5,
47:18, 49:18
objective [2] - 5:7, 13:4
objector [1] - 48:17
obvious [1] - 35:24
obviously [7] - 4:24,
6:8, 19:2, 23:12, 28:16,
31:17, 34:6
occurs [1] - 49:10
OF [1] - 1:1
office [1] - 41:23
official [1] - 53:8
Official [1] - 53:16
once [2] - 40:20, 51:21
One [5] - 6:13, 6:15,
16:10, 27:7, 44:15
one [30] - 4:8, 4:9, 6:5,
7:16, 9:19, 9:22, 9:24,
11:17, 12:3, 13:13,
16:18, 16:21, 19:10,
19:12, 20:4, 22:12,
30:19, 33:21, 36:23,
37:6, 37:9, 38:19, 43:6,
45:12, 45:19, 46:16,
46:25, 48:4, 48:10
one's [2] - 9:18, 41:21
online [1] - 6:24
open [5] - 24:12, 24:16,
24:20, 38:12
opens [1] - 41:25
opinion [1] - 22:14
opportunity [2] - 29:13,
33:12
oppose [1] - 38:9
opposed [1] - 19:13
opposition [1] - 19:15
opt [2] - 15:22, 21:8
opt-out [2] - 15:22, 21:8
option [2] - 8:13, 8:18
order [21] - 7:13, 8:12,
27:2, 31:24, 32:3, 32:19,
33:5, 33:20, 44:19,
44:23, 44:25, 45:11,
45:13, 46:2, 46:4, 46:10,
48:20, 50:18, 50:24,
50:25
organization [1] - 42:5
original [1] - 41:7
ourselves [1] - 13:24
outcome [1] - 12:25
overriding [1] - 6:2
overstaffing [2] - 30:16,
30:19
own [1] - 13:24
P
p.m [1] - 52:3
package [1] - 37:17
page [1] - 46:17
Page [4] - 23:2, 45:21,
47:10, 48:1
pages [1] - 53:7
paid [3] - 13:24, 24:17,
37:21
paper [1] - 3:21
papers [5] - 10:9, 48:13,
48:17, 49:20, 51:7
Paragraph [8] - 17:18,
26:22, 26:23, 45:21,
46:17, 47:10, 48:1
paralegal [1] - 30:20
paralegals [1] - 28:11
parameters [1] - 35:4
part [4] - 13:16, 25:19,
26:15, 50:9
participants [1] - 16:11
participate [2] - 7:13,
8:12
particular [7] - 10:22,
19:7, 22:1, 31:22, 42:8,
46:1, 46:2
particularly [4] - 6:10,
21:9, 22:19, 51:20
parties [6] - 3:9, 13:14,
13:17, 25:7, 25:8
parts [1] - 11:17
party [1] - 41:9
passing [1] - 48:4
pause [2] - 36:18, 37:1
pay [4] - 7:16, 8:25,
12:19, 43:3
paying [5] - 6:6, 8:2,
37:16, 39:18, 40:14
payment [4] - 7:20, 8:9,
32:24, 38:23
payments [3] - 16:24,
18:9, 41:18
penalty [1] - 16:17
pending [1] - 2:2
people [36] - 5:25, 6:6,
6:7, 6:18, 7:3, 7:4, 7:11,
7:16, 7:20, 8:1, 8:3, 8:4,
8:9, 8:11, 8:16, 9:3,
10:21, 12:23, 13:4, 13:7,
16:11, 16:15, 16:17,
21:22, 25:14, 25:24,
26:2, 26:3, 26:7, 26:8,
32:10, 32:11, 39:18,
41:18
per [1] - 16:18
perceived [1] - 34:21
percentage [6] - 23:13,
27:11, 27:12, 41:6,
41:12, 44:10
perception [2] - 27:16,
27:17
Perdue [1] - 20:16
perfectly [2] - 7:5,
21:11
perhaps [3] - 21:25,
24:11, 30:15
perjury [1] - 16:17
permissible [1] - 5:15
person [3] - 41:22,
41:23, 42:2
personal [2] - 32:6,
51:6
persons [4] - 4:15, 5:9,
6:15, 47:12
perspective [4] - 7:7,
34:12, 40:19, 41:21
petition [2] - 26:16,
31:5
petitions [1] - 50:4
phrase [1] - 17:21
Pick [1] - 22:13
pick [1] - 49:9
Pick-Up [1] - 22:13
picking [1] - 5:23
place [2] - 12:10, 34:1
placed [1] - 18:11
plaintiff [1] - 2:24
plaintiff's [2] - 28:7,
31:11
Plaintiffs [1] - 1:15
plaintiffs [12] - 4:7,
5:10, 12:8, 16:24, 18:25,
19:2, 19:11, 19:20,
25:11, 26:14, 37:10,
50:20
plaintiffs' [10] - 2:19,
6:3, 11:9, 13:16, 20:17,
21:4, 36:25, 38:6, 51:7,
51:9
pleased [3] - 3:8, 3:11,
26:12
point [28] - 4:3, 5:3,
5:13, 5:21, 5:22, 5:24,
15:12, 17:14, 26:22,
27:21, 29:9, 30:9, 33:8,
33:15, 33:21, 34:25,
35:15, 36:10, 39:6, 42:9,
43:1, 46:9, 48:10, 48:23,
49:2, 50:3, 50:17, 51:8
pointed [1] - 41:1
pointing [1] - 9:12
points [2] - 13:11, 36:4
position [8] - 19:18,
29:6, 35:17, 37:10,
37:12, 44:8, 48:18
possible [5] - 5:9, 6:9,
6:22, 8:19, 43:5
potential [1] - 23:3
practical [2] - 6:2, 40:19
practice [2] - 30:1,
48:12
preclude [2] - 33:3
precludes [3] - 32:17,
32:19, 33:4
predominance [1] -
11:4
preferred [1] - 41:13
prejudging [1] - 30:22
preliminarily [1] - 8:19
59
preliminary [30] - 2:20,
3:11, 3:17, 5:1, 14:22,
16:3, 18:5, 20:1, 21:14,
24:11, 24:19, 26:21,
27:1, 30:23, 31:23, 32:2,
32:19, 33:5, 33:20, 36:3,
44:19, 44:22, 44:25,
45:5, 45:10, 46:2, 46:3,
46:10, 48:24, 50:23
preparation [2] - 31:16,
51:14
prepare [1] - 17:24
prepared [5] - 16:1,
16:2, 18:5, 24:7, 29:2
preparing [1] - 28:1
prerequisites [1] -
11:21
pres [1] - 42:4
present [3] - 3:11,
26:14, 28:5
presentation [1] - 18:17
presented [2] - 25:5,
45:11
pressed [1] - 24:5
presumption [3] - 12:1,
12:6, 12:12
presuppose [1] - 44:5
pretty [8] - 8:8, 9:12,
11:13, 24:2, 27:12,
29:20, 35:24
prevailing [3] - 13:3,
13:14, 41:9
price [1] - 9:1
primary [1] - 43:25
private [1] - 30:1
problem [2] - 43:21,
50:6
procedural [4] - 12:3,
12:4, 42:16, 42:21
procedurally [2] -
11:18, 11:23
Procedure [1] - 36:21
proceeding [1] - 42:19
proceedings [2] - 53:4,
53:8
Proceedings [2] - 2:1,
52:3
process [14] - 4:25,
5:17, 7:13, 9:12, 11:2,
11:21, 11:24, 12:11,
13:13, 35:25, 36:14,
42:3, 42:23, 43:6
produce [1] - 32:6
produced [1] - 10:21
product [13] - 5:10,
5:14, 5:15, 5:16, 5:23,
8:15, 9:2, 11:23, 16:18,
16:21, 22:11, 40:6, 40:8
products [3] - 4:16,
5:19, 26:7
proffered [1] - 46:3
program [4] - 15:23,
21:10, 21:13, 37:13
programs [2] - 6:23,
26:6
projected [1] - 18:10
promise [1] - 29:17
proof [8] - 6:15, 6:23,
6:25, 7:12, 7:17, 10:21,
16:12, 18:18
proper [1] - 10:7
proportionality [10] -
32:13, 35:13, 40:21,
40:22, 40:24, 42:9,
43:23, 44:8, 44:17
proposal [1] - 49:14
propose [12] - 2:22,
3:23, 23:11, 24:13, 44:1,
46:20, 46:21, 47:15,
49:9, 49:19
proposed [20] - 2:22,
4:15, 6:13, 15:18, 15:23,
16:3, 17:11, 18:6, 18:21,
21:9, 21:13, 21:15, 22:9,
22:25, 27:2, 28:22,
45:13, 46:19, 47:6, 50:21
proposes [1] - 33:20
proposing [1] - 47:16
protection [1] - 34:19
protein [1] - 40:8
proud [1] - 26:14
prove [2] - 7:9, 39:22
proven [1] - 32:25
provide [3] - 3:17,
24:11, 27:1
provided [1] - 14:1
providing [2] - 30:23,
32:21
provision [5] - 8:9,
17:20, 18:9, 45:8, 45:23
provisional [1] - 19:25
provisionally [1] - 5:2
provisions [2] - 28:25,
31:21
public [8] - 27:14,
27:15, 28:14, 30:24,
34:20, 34:22, 42:5, 45:24
purchase [11] - 6:16,
6:24, 6:25, 7:12, 7:17,
10:22, 16:13, 16:20,
39:13, 39:19, 40:5
purchased [5] - 4:15,
5:10, 16:18, 16:21, 26:8
purchases [3] - 6:1,
8:6, 10:22
pure [1] - 12:24
purposes [13] - 5:18,
7:23, 9:11, 9:25, 10:8,
11:9, 13:14, 18:25,
19:10, 19:14, 37:3, 43:10
pursuant [2] - 17:21,
17:22
put [11] - 8:8, 11:7,
25:7, 28:4, 29:22, 32:22,
34:1, 34:23, 39:21, 41:3,
51:5
puts [1] - 27:12
putting [1] - 8:5
Q
qualified [1] - 7:5
quality [1] - 51:16
quantum [1] - 12:20
questions [3] - 3:20,
13:12, 20:12
quick [2] - 12:11, 31:6
quickly [1] - 48:21
quite [2] - 18:1, 42:18
R
raised [2] - 4:17
Raised [2] - 2:3, 53:5
RAISED [1] - 1:5
range [1] - 33:9
rate [4] - 14:3, 26:18,
26:20, 30:7
rates [1] - 23:19
rather [4] - 13:18,
26:23, 43:19, 43:20
ratifying [1] - 28:22
re [2] - 22:13, 53:4
RE [1] - 1:4
reached [2] - 3:9, 13:22
reaction [1] - 33:14
read [1] - 3:2
ready [2] - 46:11, 50:22
reaffirm [1] - 38:11
real [1] - 18:13
realistic [1] - 21:20
reality [4] - 21:21, 22:2,
42:7, 44:16
really [15] - 16:16, 19:1,
19:18, 19:19, 22:3,
22:22, 23:15, 28:4,
31:16, 36:8, 36:19, 37:5,
40:19, 43:12, 43:18
reason [6] - 8:23, 12:23,
15:3, 18:2, 41:17, 43:11
reasonable [3] - 12:12,
32:15, 42:17
reasonableness [6] -
16:8, 18:8, 21:18, 32:4,
34:13, 47:6
reasons [5] - 15:21,
16:2, 20:13, 36:23, 37:6
receipts [9] - 6:16, 6:19,
7:3, 7:20, 7:24, 21:22,
21:24, 22:2, 25:25
receive [1] - 51:7
received [1] - 47:23
recognition [1] - 36:24
recognize [1] - 16:4
recognizes [2] - 34:16,
41:8
recognizing [3] - 8:1,
8:11, 12:23
recommended [1] -
13:17
record [6] - 2:6, 9:16,
30:24, 31:1, 34:24
recorded [1] - 53:3
records [3] - 23:22,
26:4, 26:5
recovery [4] - 23:13,
27:12, 41:13, 44:11
reference [3] - 41:6,
44:20, 51:3
referenced [1] - 22:15
references [2] - 26:24,
44:24
referred [4] - 11:5,
22:10, 23:7, 40:21
referring [1] - 5:22
refers [1] - 22:21
refined [1] - 5:6
reflects [1] - 51:16
regard [1] - 20:9
regarded [1] - 21:1
regarding [1] - 36:11
regardless [1] - 37:7
reinforcing [1] - 51:22
rejecting [1] - 35:20
relates [1] - 38:4
relation [1] - 40:25
relatively [6] - 6:20,
7:13, 8:2, 8:5, 10:1, 12:7
release [3] - 2:21,
22:25, 41:4
relief [3] - 12:20, 40:22,
42:10
relying [1] - 41:9
remain [1] - 35:1
remains [2] - 19:11,
34:24
remarkably [1] - 20:21
remiss [1] - 30:22
Reported [1] - 1:21
Reporter [1] - 53:16
REPORTER'S [1] - 53:1
representation [3] -
15:21, 20:25, 21:6
representative [1] -
26:14
representatives [4] -
10:15, 10:18, 11:19, 27:7
representatives' [1] -
20:19
represented [1] - 21:4
representing [1] - 10:23
request [4] - 36:16,
47:15, 47:21, 47:22
requesting [1] - 4:25
require [1] - 31:15
requirements [2] - 12:4,
21:7
requires [2] - 4:22, 5:2
research [1] - 29:23
reserved [2] - 19:2,
42:12
resistance [1] - 4:18
resolution [3] - 3:10,
3:15, 31:19
resolved [1] - 25:4
resolving [1] - 10:25
respect [5] - 10:13,
10:20, 16:23, 21:8, 23:18
respond [1] - 38:15
result [2] - 3:13, 3:16
resulting [2] - 12:6,
12:13
retailers [1] - 6:23
reversed [1] - 42:24
review [7] - 2:22, 22:9,
23:23, 24:7, 27:23, 32:6,
49:17
reviewed [4] - 2:21, 3:2,
12:8, 31:21
reviewing [1] - 17:25
Richard [1] - 1:11
rights [1] - 19:3
rise [1] - 13:15
risk [2] - 12:17, 19:11
road [1] - 25:13
Robert [2] - 1:18, 2:13
Room [1] - 1:22
RPR [1] - 1:22
rubber [3] - 28:22,
30:25, 35:25
Rule [8] - 4:21, 4:22,
10:3, 11:3, 15:19, 27:22,
33:4, 42:22
rule [1] - 45:13
Rules [1] - 36:20
rules [3] - 23:17, 36:20
ruling [2] - 15:12, 25:2
run [3] - 12:17, 26:21,
48:21
RWA [1] - 37:13
S
Safeway [1] - 26:6
sailing [6] - 17:20,
17:22, 23:8, 31:18, 34:10
60
sales [2] - 5:17, 5:19
Sanderson [4] - 20:15,
41:11, 42:19, 44:4
sat [1] - 10:21
satisfaction [1] - 32:25
satisfied [6] - 12:5,
13:5, 16:7, 17:17, 17:18,
21:16
satisfies [1] - 20:4
satisfy [1] - 16:12
saved [1] - 6:18
saw [1] - 51:3
SCARBOROUGH [16] -
2:13, 18:24, 19:6, 33:19,
34:4, 34:6, 35:16, 35:19,
36:4, 36:9, 46:13, 46:24,
47:19, 48:2, 49:24, 50:6
Scarborough [12] -
1:18, 2:14, 2:18, 17:10,
18:22, 19:21, 33:17,
36:8, 41:1, 46:12, 47:18,
49:23
schedule [2] - 28:24,
50:21
scrutiny [3] - 15:11,
30:10, 30:17
second [7] - 8:4, 13:18,
44:7, 45:12, 45:19,
46:25, 49:7
secondly [1] - 37:4
secretary [1] - 51:24
securities [1] - 41:15
see [25] - 2:10, 2:17,
17:18, 19:15, 20:21,
26:3, 26:7, 26:11, 28:4,
29:11, 31:13, 32:10,
32:12, 34:13, 34:17,
35:6, 35:10, 36:5, 37:5,
44:22, 45:12, 45:22,
45:24, 50:12, 50:15
seem [1] - 18:9
sell [1] - 26:3
sells [2] - 8:15, 40:6
send [2] - 33:10, 50:10
sends [1] - 51:24
sense [7] - 12:21,
31:11, 40:10, 41:2,
41:17, 42:19, 50:8
sent [1] - 32:12
separate [2] - 7:19,
42:12
separated [1] - 50:11
separately [1] - 8:4
series [1] - 39:1
serious [1] - 36:13
seriously [1] - 21:22
services [1] - 14:1
set [4] - 15:21, 17:1,
20:4, 36:19
settle [6] - 7:1, 13:18,
25:19, 35:5, 36:15, 38:18
settled [2] - 10:17,
19:13
settlement [88] - 2:4,
2:20, 2:21, 2:23, 3:2,
3:3, 3:9, 3:13, 4:15,
4:22, 5:4, 5:6, 5:8, 5:18,
7:6, 7:14, 7:16, 8:20,
9:20, 9:25, 10:4, 10:7,
11:8, 11:11, 11:14,
11:17, 12:1, 12:6, 12:13,
12:14, 12:20, 12:24,
13:21, 15:18, 16:3, 16:5,
16:9, 17:12, 17:19, 18:6,
18:8, 18:14, 18:22,
18:25, 19:3, 19:10, 20:1,
20:2, 21:7, 21:15, 21:18,
22:21, 22:22, 22:25,
24:20, 26:15, 26:24,
27:2, 28:13, 28:20, 33:4,
33:8, 34:2, 34:9, 34:16,
35:20, 36:12, 37:20,
41:2, 42:11, 42:15,
42:17, 43:13, 43:18,
43:22, 43:24, 46:2, 47:6,
47:7, 47:8, 47:13, 47:14,
47:22, 48:25
settlement's [3] - 3:15,
11:22, 43:15
settlements [5] - 6:13,
22:9, 27:16, 40:15, 41:19
settling [1] - 40:20
several [2] - 7:21, 9:17
sheets [5] - 27:24, 28:6,
29:3, 31:9, 32:6
shelf [1] - 5:15
shelves [1] - 5:17
shifting [1] - 13:15
show [9] - 7:18, 14:8,
16:12, 22:2, 25:23,
26:12, 29:14, 35:8, 39:17
showing [3] - 19:1,
19:4, 19:12
shows [2] - 6:12, 31:1
side [9] - 6:3, 7:25,
11:9, 25:10, 25:22,
29:10, 36:25, 39:8, 39:17
sideline [1] - 31:18
sidelines [1] - 50:20
sides [5] - 4:1, 20:13,
21:2, 24:14, 25:3
Sidley [2] - 2:15, 39:10
sight [1] - 12:19
sign [4] - 27:2, 46:4,
46:11, 46:12
signature [1] - 53:11
signed [2] - 50:18,
50:24
signing [3] - 32:19,
33:5, 48:20
simple [3] - 7:13, 42:19,
42:20
simplified [2] - 13:8,
41:18
simply [2] - 11:10,
38:10
single [2] - 39:6, 39:19
sit [1] - 30:2
sites [1] - 21:11
sits [1] - 31:18
situation [3] - 5:25,
20:21, 34:20
situations [1] - 39:1
six [1] - 43:7
Six [3] - 17:18, 26:23,
46:17
slice [1] - 25:18
small [3] - 25:18, 39:13,
39:14
smooth [1] - 29:12
sold [1] - 4:16
someone [4] - 6:11, 8:8,
20:22, 48:16
somewhat [3] - 5:7,
5:13, 22:19
sorry [3] - 15:8, 36:9,
49:25
sort [6] - 4:2, 6:2, 8:24,
11:17, 13:13, 31:16
specific [1] - 39:6
specifically [3] - 4:21,
39:1, 44:23
specifics [1] - 3:19
spectrum [1] - 7:10
spend [2] - 39:11, 43:13
spent [12] - 14:2, 14:3,
14:5, 18:18, 23:23, 24:1,
27:25, 28:19, 35:9, 43:7,
44:6, 50:5
split [1] - 34:21
stage [1] - 4:25
stake [2] - 37:6, 50:19
stamp [1] - 35:25
stamping [2] - 28:22,
30:25
stand [1] - 52:1
standard [1] - 10:2
standing [1] - 50:20
standpoint [1] - 26:13
staple [1] - 40:8
start [2] - 3:8, 4:21
started [1] - 28:2
starting [1] - 5:3
starts [2] - 39:22, 40:10
state [1] - 12:7
STATES [1] - 1:1
States [1] - 4:16
statistics [1] - 9:6
status [3] - 24:3, 44:3,
51:22
statutes [2] - 13:15,
41:10
stay [1] - 29:20
stays [1] - 32:18
stenographically [1] -
53:4
step [12] - 15:16, 17:9,
18:19, 18:20, 19:22,
19:24, 25:16
steps [1] - 3:23
still [7] - 5:16, 5:23,
8:16, 8:21, 28:18, 39:13,
42:20
stop [1] - 24:8
store [1] - 21:23
stores [2] - 22:1, 26:2
straightforward [1] -
25:11
Street [1] - 1:23
strong [2] - 15:13,
51:22
structure [5] - 8:18,
23:11, 27:5, 31:22, 35:5
structuring [1] - 34:24
struggle [1] - 38:18
struggled [1] - 39:24
struggling [1] - 42:7
study [1] - 9:7
stuff [2] - 26:4, 26:9
subject [1] - 13:25
submit [6] - 23:22,
42:11, 47:14, 50:8,
50:17, 50:21
submitted [1] - 22:24
Subsections [1] - 20:5
substantial [1] - 19:11
substantive [3] - 13:21,
43:12, 43:17
substantively [1] - 12:1
succeed [1] - 13:2
success [1] - 37:14
successful [2] - 9:18,
10:25
sufficient [2] - 33:10,
43:3
suggest [3] - 15:9, 17:9,
18:14
suggested [1] - 31:24
suggesting [5] - 14:5,
27:23, 35:5, 35:23, 45:23
suggestion [4] - 21:10,
24:10, 49:16, 50:7
suit [1] - 25:12
summarize [1] - 3:3
support [2] - 22:24,
31:23
Supreme [2] - 10:5,
13:16
surface [4] - 29:11,
29:12, 29:13
surprised [4] - 31:7,
31:11, 37:5
suspect [1] - 6:21
sweep [1] - 5:7
system [2] - 5:14, 26:2
T
table [2] - 18:12, 32:23
Tank [1] - 22:14
tax [1] - 41:5
technically [1] - 13:14
technology [1] - 13:7
Tele [1] - 9:18
tends [1] - 7:2
tension [1] - 6:9
terms [43] - 5:23, 11:13,
13:6, 13:21, 15:17,
15:19, 17:16, 17:17,
18:5, 18:7, 18:20, 18:21,
18:25, 19:25, 20:1, 20:2,
20:3, 20:7, 20:10, 20:17,
20:18, 20:25, 21:14,
21:17, 23:7, 23:11,
23:14, 23:22, 24:10,
30:14, 30:23, 34:12,
34:19, 35:24, 43:12,
43:18, 43:22, 44:5, 44:6,
44:10, 45:6, 50:4, 50:14
THE [81] - 1:1, 1:1, 2:2,
2:5, 2:9, 2:17, 3:1, 4:4,
4:12, 5:20, 6:10, 6:18,
6:21, 14:5, 14:8, 14:11,
15:1, 15:7, 15:9, 17:8,
19:5, 19:21, 26:21, 27:5,
27:21, 28:9, 29:15,
29:17, 30:9, 30:12, 31:3,
31:6, 31:15, 32:2, 32:9,
32:21, 33:17, 34:3, 34:5,
34:9, 35:18, 35:22, 36:7,
37:24, 38:16, 38:25,
39:5, 40:1, 41:12, 43:21,
45:5, 45:10, 45:16,
45:19, 45:22, 46:8,
46:14, 46:17, 46:19,
46:23, 46:25, 47:4,
47:12, 47:18, 47:20,
47:25, 48:3, 48:6, 48:9,
48:14, 48:20, 49:2, 49:5,
49:22, 50:1, 50:7, 50:16,
51:1, 51:3, 51:11, 51:13
themselves [3] - 37:9,
41:16, 47:13
they've [2] - 20:23,
23:23
thinking [1] - 49:10
third [1] - 8:11
Third [6] - 18:1, 18:2,
61
22:12, 22:14, 40:1, 40:3
thorough [5] - 15:19,
22:23, 23:1, 28:20, 51:16
thoroughness [1] -
51:14
thoughts [1] - 33:18
thousands [1] - 10:12
Three [8] - 6:14, 16:20,
22:3, 22:6, 26:22, 26:23,
27:8, 46:17
three [28] - 4:7, 7:19,
14:6, 14:14, 15:9, 15:14,
17:4, 18:16, 23:2, 23:4,
23:6, 24:6, 28:3, 28:7,
28:22, 30:25, 31:8,
31:10, 31:20, 32:7,
34:11, 34:17, 35:10,
38:7, 40:12, 44:24,
48:21, 48:22
throttle [1] - 19:15
throughout [1] - 11:1
thumb [3] - 24:2, 29:20,
44:2
Tier [16] - 6:13, 6:14,
6:15, 16:10, 16:16,
16:20, 22:3, 22:5, 22:6,
27:7, 27:8, 44:15
tier [1] - 8:4
tiers [2] - 7:20, 22:18
tightly [1] - 29:20
today [15] - 4:24, 10:1,
11:10, 13:3, 14:12, 23:6,
33:16, 36:1, 36:24, 38:4,
43:11, 43:19, 46:5,
48:20, 50:18
took [7] - 9:21, 9:22,
12:10, 26:11, 29:9, 30:20
top [1] - 48:1
total [8] - 14:19, 17:3,
18:11, 27:6, 27:9, 32:23,
34:17, 42:10
totally [2] - 24:8, 34:14
towards [1] - 36:21
trace [2] - 26:4, 26:5
track [1] - 26:7
transcribed [1] - 53:8
transcript [1] - 53:8
transportation [1] -
50:13
trial [6] - 7:6, 10:5, 13:2,
19:14, 36:21, 37:3
tried [6] - 8:10, 8:17,
13:2, 19:13, 28:18
troubled [2] - 14:12,
14:13
troubles [1] - 21:19
Truck [1] - 22:13
true [1] - 24:25
truly [2] - 41:2, 41:14
try [5] - 12:22, 13:6,
13:17, 13:24, 35:4
trying [6] - 7:1, 26:25,
34:23, 35:23, 38:18,
44:18
turn [2] - 3:6, 11:4
turns [1] - 42:15
Two [5] - 6:13, 16:16,
22:3, 22:6, 27:8
two [10] - 4:6, 6:19,
11:16, 21:24, 22:18,
23:12, 30:19, 36:4,
36:10, 41:24
types [1] - 39:1
typical [2] - 10:16,
20:17
typicality [3] - 10:18,
15:20, 20:18
Tyson [12] - 2:12, 2:14,
2:16, 3:7, 8:15, 16:18,
16:21, 31:18, 40:6, 44:4,
44:24, 53:4
TYSON [1] - 1:4
Tyson's [22] - 2:3, 4:16,
14:22, 17:2, 17:10,
17:12, 17:14, 18:4,
18:15, 18:20, 20:16,
23:8, 31:16, 31:19,
32:18, 32:22, 33:22,
34:14, 34:15, 49:3,
49:17, 50:19
U
U.S [1] - 1:22
ultimate [9] - 13:25,
29:1, 32:9, 32:15, 33:2,
33:3, 33:25, 36:11, 43:24
ultimately [3] - 35:1,
37:1, 37:14
ULWICK [25] - 2:7,
2:25, 3:5, 4:11, 24:15,
27:4, 27:20, 28:8, 29:4,
29:16, 30:5, 30:11, 31:1,
31:4, 31:14, 32:1, 32:8,
32:20, 33:7, 49:1, 49:19,
50:15, 50:23, 51:2, 51:10
Ulwick [24] - 1:15, 2:7,
2:9, 3:1, 4:4, 9:5, 23:10,
24:1, 24:14, 26:22,
27:14, 27:25, 29:19,
31:8, 31:25, 33:6, 35:7,
38:11, 44:1, 49:5, 50:11,
50:13, 51:4, 51:21
Ulwick's [1] - 50:7
under [20] - 8:6, 10:3,
10:9, 11:3, 13:2, 13:16,
15:19, 15:22, 16:17,
17:16, 19:19, 20:11,
20:18, 21:5, 23:17,
27:22, 33:4, 37:20, 42:17
underpaid [1] - 7:9
understood [3] - 28:21,
37:10, 37:12
UNITED [1] - 1:1
United [1] - 4:16
unless [2] - 17:13, 18:4
unlikely [1] - 44:15
unmanageable [1] -
19:14
Up [1] - 22:13
up [30] - 5:12, 5:23,
6:12, 7:9, 9:13, 12:25,
14:19, 16:24, 17:1,
17:23, 18:16, 23:9, 25:5,
25:25, 28:9, 30:25, 31:2,
31:20, 34:11, 34:14,
34:15, 34:17, 35:9, 39:9,
40:13, 41:3, 41:25, 43:5,
44:24, 51:18
upcharge [1] - 39:19
urge [1] - 37:19
V
vehicle [2] - 6:11, 6:12
verdict [1] - 28:18
view [9] - 5:24, 17:14,
27:21, 36:6, 38:11, 46:9,
48:23, 49:2, 51:8
views [2] - 34:7, 48:19
vigorous [1] - 11:7
vis [2] - 44:17
vis-a-vis [1] - 44:17
vision [1] - 18:20
W
Wait [1] - 30:6
wait [4] - 31:13, 35:10,
44:12, 50:3
waiting [1] - 49:13
Wal [1] - 26:7
Wal-Mart [1] - 26:7
wants [5] - 12:19, 18:4,
40:11, 43:4, 49:14
warehouses [1] - 26:3
wary [3] - 22:9, 22:16,
39:2
Washington [1] - 4:8
ways [2] - 8:17, 40:14
Weather.com [1] -
21:11
web [1] - 21:11
weekend [1] - 52:2
West [1] - 1:23
Western [1] - 4:8
whatsoever [1] - 7:12
62
wheels [1] - 24:9
whereas [2] - 12:18,
44:2
Whereof [1] - 53:10
whole [2] - 9:3, 39:1
wholesale [1] - 9:1
willing [7] - 18:17,
23:23, 24:9, 24:13,
32:22, 33:22, 34:16
windfall [1] - 14:2
wish [1] - 47:13
WITHOUT [1] - 1:5
Witness [1] - 53:10
WOOLF [3] - 2:11, 49:4,
51:12
Woolf [11] - 1:18, 2:11,
2:17, 17:10, 18:23, 24:1,
29:19, 49:23, 50:11,
50:13, 51:21
wore [1] - 37:14
works [3] - 8:18, 41:15
worthy [1] - 42:6
write [2] - 40:11, 40:12
writing [1] - 47:21
Y
year [2] - 9:15, 21:24
years [3] - 6:19, 21:24,
29:25
yourselves [1] - 2:5
Z
Zajac [3] - 1:22, 53:3,
53:15