made please a court that i jonathan are representing myself and similarly dairy farmers similarly situated your honour's you have our briefs the facts of defendants coerced farmers into supporting a sellout how class counsel colluded with their counterparts in other district court coverage for everyone except the absent class members any casual observer any member of the public sees immediately the travesty of justice escapes represents the district court the defendants and counsel each betrayed the very farmers a very people who literally butter their bread i'm representing the salt of the earth people these hardworking farmers who've endured such heartache as the defendant shoved them off their generational family farms favoring the factory model well this may or may not concern this court what does concern the court that in the fight in the process of doing this the fact is that each of these parties have violated the law the class is made up of two groups the oppressed and their oppressors the oppressed know all too well that their milk market farm is controlled by the d f a d m s marketing bloc the oppressors on the other hand do not have to worry about their milk market by virtue of their v l a piece that is in the co operative the district court recognizes as early as the class certification hearing the pretended the reaction of the class has been overwhelmingly positive similarly the judge received twelve hundred odd letters sent to support the settlement almost without exception these four letters are identical and that game petition the district court my milk inspector brought me this letter to sign i think it should be illegal for him to do this this is extortion the district court previously explained that it is illegal for the defendants to contact  record shows that farmers who cooperated and signed in support of and supported very good reason for doing so retaining their livelihood please read the judy tompkins letter on the docket the court was well aware of the control defendants have over the class members ability to market their will i have citations here and i'd like that ok where was the district judges who do sherry and guardian of the class before and following the fairness hearing the district judge refused to dock it in camera declarations of extortion and our exhibits teleconference transcripts said they meaning us have got an opportunity for written objections you're listening with both ears close she made sure the voice of those opposing farmers remain off the docket all the rules of the district court to be used as weapons against the citizens is what you wanted to do was to submit secret materials to the court without providing them to the other side yes that's what in camera means in this well my understanding was we filed a motion where  that we were very clear with our accusation up front with everybody and what we were looking to submit was declarations which are obviously signed up names and addresses and were serving that the defendants have the ability via that marketing  put any individual you know out of business it doesn't apply to exhibits furthermore we submitted exhibits at the district court and like i say from the teleconference it was  and so whereas this particular judge had also done a couple of in camera filings which we referenced in our brief song and so we were we learned the quote trick where dairy farmers and sons going to law school but  this is what this is this is not what we do with their reforms and so we learned about in camera from our council but i think it's also in the brief it's certainly on the docket so i ask where that where the district judge as  campaign or campaign in vermont and i don't know the political dealings i don't do know mr cassidy early on he was a superdelegate bernie sanders so i know that the defendants have political pac money that they spread around but again i mean there are a form right of time or energy or resources to be able to get to the bottom of this and not under settlement  state as you're aware there's close political ties for example new hampshire had written in well one of the quote class representatives was the former commissioner of agriculture from the state of new hampshire for many years  people who signed those letters he would be well aware who these people are they would be as associates for lack of a better term so much and i would also body else going to speak to this  we we were going to require this because the dish recorded on sixty minutes to represent itself we weren't sure what would go on so i had a minute argument and then we would request some rebuttal time and we would ask of joshua and the like because he's a little more  like i say adverse with the legal ease if you will one when your will give you a little bit of time to wrap up here and then why don't we since you your room confronting sixteen minutes on the involving dishonesty fraud deceit a misrepresentation that's rule of professional conduct eight for four for receiving sixteen point six million dollars very for money these attorneys deserve to be disbarred for the defendant to ever in any way or degree the vast majority of the class members submitted claims under the settlement yes or i mean apart from even if we disregard all the letters it's a relatively small number of farmers who either objected or opted out and everybody else filed claims yes i'm you know i'm you know i'm not used to dairy farmers across actions i've seen a lot of securities sipe class actions and those cases this is a rather extraordinary number of peoples make claims by the standard of class action litigation is that's something we should take into account in deciding whether they're support or not that most of the folks who are covered by this joined in the summit by setting claims i would certainly argue that you shouldn't take it into account because somebody or and during that this claims telling your  correct including two of the original class representatives to the early ridgeley there was a for it oh that's that's what happens in litigation that's not class litigation i mean if somebody says gee that's a very tempting offer you're making me and i'm kind of between a rock and a hard place because i could keep fighting and maybe i'll get nothing at the end of the day or i could saddle and then people very often choose to settle because it may not be everything they want but it's better than going forward and it seems to me that that's the judgment that the vast majority of people in this settlement class made some people decided that they wanted to fight on and they're allowed to do that they can and apparently have pursued additional litigation and that's that's what's puzzling me is why isn't this a fairly garden you know when you ask th question for us is really have the lawyers in good faith decided that this is the best they can do in effect and i'm wondering why we shouldn't conclude that most of the class reluctantly on happily maybe agreed that this is this is where in ams my original comment was about the oppressed and the oppressors now if you are working in the field as an oppressed and someone says look i'll give you two thousand dollars if you sign on this dotted line you sign on the dotted line and the reason they haven't come forward to testify is because as the district judge correctly cited takes a lot of courage to get up and talk about your boss to your boss which is why so many people in fact letters an objection is one of the items we have in camera having camera letters of an objection that says where scuse me the follow right on there ghana you know they want they you they want to object but they are and some of them are in this pile of letters and support so you had farmers who were in support i would say the fundamental problem is that you had employees you have employees of the defendants who have the ability to shut you down going to your farm that's represents is twelve hundred letters and support the eight thousand or so i and mr e b i believe as well both filled out our owner because he opted out this time but but i filled out my claim form because if things go the wrong way then i might as well get my two thousand dollars so the fact and i think the district court was spot on with this particular argument early on she recognized and mr pierson went round and round with her on that point that that just because you say i'll take the two thousand dollars doesn't mean that you have any opinion on the case yea or nay or otherwise it means someone's offering you free money is the way your average person is going to view that i understand thank you you're welcome why don't we hear from the other side and joshua hard have an opportunity for two minutes to give any remarks rebuttal that he wants to  since this is your first appearance in court you're in law school just because you're offered time to talk as an attorney doesn't mean you have to take they usually do the yes yes as everybody here will tell you of trial after after ten nations litigation by both sides that involved five million pages of discovery seventy depositions more than a thousand pages of expert reports a summary judgment rulings dauber rulings  attorney from the department of justice this was a serious settlement reached by serious lawyers on both sides the district court concluded there's no question the district court applied the proper legal test here the grinnell test and concluded that eight of the nine grinnell factors all supported this settlement the only only other factor was a neutral factor that the defendant had resources to do more which has been characterized as sort of it's really a second it's a secondary factor and in most cases so all of the factors point in a single direction i want to focus on on the questions that mr hart focused on and the court asked some questions about relating to the reaction of the class and i want threshold point i'd make which i think is important and it's reflected in this court's decision in is at the end of the day the courts review the district courts review and this court for a view of a settlement agreement it's not that it's not a plebiscite among class members that's a factor it's one of the grinnell factors but in sharyn for example  thirds the letters that were submitted in sharon by the class members had opposed the saddam all of the subclass representatives in that case opposed the settlement nevertheless the court upheld the approval of the subject basically saying that the fundamental mission of the i mean did it it actually comes out more at the attorney fee is less it's a zero sum game in that respect but that's a that's a reasonable approximation i think the most the most relevant aspect of the financial thing though the way one way or the benchmark really in this case  in any class action case is to look at what the potential single damages recovery would have been and here what the evidence showed was that you had a fifty million or settlement on top of a thirty million dollars settlement so if the case again it probably thirty million would have been an offset against any recovery yet eighty million dollars in recovery in this case versus single damages within the limitations period of one hundred thirty eight point six million dollars there was an argument for damages outside the for your limitations period which would have brought the death single them just about two hundred thirty in were form letters you know opposed the harz had been circulating a form letter opposing the settlement there was a form letter circulated by deface a lot of letters of form letters ninety percent of them supported that even if you went back and did and did e c f count and looked at the letters that were individually written ninety percent of those supported the settlement but there were there were other important in disha eighty five to eighty five percent claims rate which is almost unprecedented in a in a class action seven certainly the highest i see no need of that fence for the plaintiff side  you had a year long campaign to try to get farmers to oppose the settlement and yet other than the harz only three farmers showed up at the fairness hearing to oppose a settlement of out of a class of about ninety subclasses of about ninety five hundred farmers and you know while the heart of our passion in their beliefs and we respect that the fact of matter is there are eight other subclass representatives in this case who support to support the settlement so most of the subclass representatives support the settlement as as you said earlier the key thing is the reasonable minds of the relief and whether this was a reasonable judgment and i see your time is running down we haven't quite gotten to to that  in this case am i right that the district court had to think to really rejected a prior settlement for the lack of equitable relief and sent the parties back to the drawing board and then maybe an oversimplification gets a little bit of it was actually a bit of an oversimplification and the district court was concerned probably too concerned in my view about about the reaction of the class and it didn't just of course analysis in the first hearing frankly was a bit of an oversimplification but that was clearly an important factor there were issues about the release which were subsequently addressed the district courts primary concerns had to do with testing and testing of milk and issue which was which was stupid yes lee addressed it as we've then went back and renegotiated the move you know why when it seemed to me on reading the record that the district court had been rather aggressive with respect to that first settlement and sending the parties back to do more completely agree with that your honor the one other observation i would make because your honest question about about never mind agee's involvement here which i think is significant but one thing to bear in mind is that the vermont e g they were not just watching this from a distance they did a special appearance in connection with the dean settlement they submit an amicus brief they asked for permission  review the don't review documents in the case and in fact at one point in the case i sat down with them for a couple hours and walked through the documents in the case so here you sort of have an unusual in disha of the reasonableness of the settlement of the injunctive relief which is the other different attorney general's offices none of whom raised any objections about it and i don't know what how much weight one gives out under catholic but cafe does set up a structured allow those parties those entities to raise any concerns and and no concerns will raise so i would simply say in in in closing your honor i've been doing this for a long time for defendants and for plaintiffs this was a terrific settlement in a in a in a very difficult case we're proud of the settlement and i think the district  the general didn't come out of nowhere this is part of the federal statute to give any trust and forcers and states that are and within the territory of affected a chance to participate in comment and the fact that they not only did not object but actually affirmative provisions they weren't really coming in to talk about whether the farmers got enough money they describe the injunctive relief as as very consistent with the kind of remedy they would seek when they pursue an action is a the state enforcers the the other point that was mentioned but i think is worthy of maybe a little more attention is the addition of an opt out right in the second settlement which was absent in the first sent and that was a concern of the district judge and that's part of white candidly it appears in the second settlement that seems to me to dramatically change how you react to people submitting claim forms for just the reason you were raising if people have no option to get out submitting a claim form is just a way of saying well if you're handing out money i might as well take some but when an opt out right has been provided so that if you are unhappy with what's going on you now have an opportunity to choose continued litigation then the people who submit claim forms and stay in have made a conscious choice along the lines that you were you were indicating and therefore that very high claims rate i think does become meaningful i think all of the indicia of class participation in the settlement it's a it's a that's also a difficult thing for the difficult decision candidly that's part of the reason it wasn't in the first go around is we felt that that part of the part of what you are buying as a defendant is peace and if we're going to buy peace than it had less value to us should we be trouble by the  solicit support for a settlement from the point of this gets back to their what happened in one round want going round one of the settlement and mr pearson correctly mentioned there was a serious issue about the release there was an issue about the absence of an opt out right and there was a procedural issue about whether the settlement had been fairly negotiate because it was after the first settlement that the court provided excuse me two additional days of hearings about whether class counsel should be replaced because they had not done a faithful job for their clients and b during the during the settlement process so in addition to two full day fairness hearings there were two days of evidentiary hearing an argument about whether class counsel had adequately fulfilled their responsibilities that two day hearing and the judge's ruling on that i think removed her concern about the process which i think had been it was she described in that first opinion rejecting the initial settlement the process as a as a toss up she was certainly wasn't for national class council yes i mean what has that the the end result of that there are lots of motions filed not only to replace council but to change the class representatives and the court was very concerned about what was  transfer breakdown in communication and was a frequent revelation of what should have been privileged material in the course of the dispute between the class members and the class lawyers and i think she felt that that in fulfilling her responsibilities to the class and looking in exercising her duty as kind of a fiduciary for the absent class members that the addition of some new new new faces who had not been mired in the in what had become an emotional and quite tense debate was in the class best interest and so she appointed there's new class reps and then basically gave a speech of one last ninety day time period to see if we could come to a meeting of the minds about the settlement i guess there's a inspecting arms out to solicit proxies and that he is not at that's a fair reminder your honor the other the other pronk of the district court's opinion which mr pearson mentioned was that she was not persuaded that absent class members were in favor of the settlement partly because she disputed the significance of the claim number in the absence of an opt out right and partly because the fairness hearing not surprisingly was almost a full day of people who were unhappy about the settlement it was a small number but they she gave them all the time they wanted and in my experience it's as a defendant you know usually bring people in to say that the settlements are good idea because everyone assumes you think it's a good idea or you wouldn't agree to it so the judge nonetheless did a bit of a nose count of who came to the first hearing so saying that it we we want to respond on the release we want to respond on the milk testing issue we want to respond on her concern that absent class members are not in favor of the settlement th reality is that that it's it's easier for the people that have constant contact with the class members to say to them look you don't have to nothing's happened to the hundred seventeen people who opted out or the two  hundred people who filed objections there's no there's no there's a string of acts of retribution because we didn't do it we made sure people didn't do it and it's in the settlement that we're not going to do it and no one to question that but we said look if we can be a facilitator if you if you think the case should be settled the court seems concerned about what that he she hasn't heard enough from the people that aren't there if you feel like signing this letter great if you doubt great and we move  really designed so that if you if one was going to look at any part of the record that you were given i would really strongly recommend that you look at the fairness hearing transcript and read what the farmer said who came in to talk what what most farmer said is the co op works for me it's a it's an essential part of my being able to make a living in what is it merely a very difficult way to make a living but we understand that some people don't feel that way they don't feel comfortable that they have access to a decision maker when they have a complaint so let's put in place a new person a neutral part of the settlement to basically be a complete mediation service for anybody who hasn't felt in the past that they've been able to do that with the cooperative that's with the on with the person essentially their for their complaint recipient and a mediator and the complaint can be about milk testing it can be about your whole or it can be about being turn it can be about anything you want and that's that what you'll see in the in the testimony from the people who came in support of the settlement is that the new ombudsman person position was part of why they were enthusiastic about it and part of why we were enthusiastic about it the co op depends upon the trust and cooperation who of the members if the adding the ombudsman person and this new advisory council member can help the people that haven't felt this comfortable historically feel better about the co op that's a that's a plus plus for everybody and so this did become a situation  where there's a suggestion that the dairy farmers basically just came in and said branches to get this over with that's true but they also came in and said one of the positives about the new settlement is that it actually has the creation of these new position a court would order something like and i was person were this edition of a neutral outsider to the governing body of the northeast area council so that the farmer the former president is important and i think last comment i know i'm a little that the judges observation about seeing those more than thirty people who came to testify was an important reason why she was comfortable that this was support for the settlement was not the price of the product of coersion but rather the product of strongly held beliefs by people who firmly believe not only with the co op was a positive thing already but that the settlement might help it be even better thank you thank you very much i thought that was the fair framing of the question what did the attorney's conduct represented good faith determination in favor of the class and what we've heard about the sharing case correct me if i'm wrong but the distinction there is that procedural fairness was not such an issue in that case as it is here here you have on the docket where defendants are admitting you know we collected letters and support from our our employees basically which the plaint classes completely illegal is these people have the opportunity to put you out of business as a farmer and that's that simply and you do not think that the district  if you look at her decision she devotes a whole paragraph to explaining about how the the reaction of the class was overwhelmingly positive there is there is one sentence with a brief reference to you know credible evidence to the contr but the fact of the of the matter is with with regards to that issue it's not necessary to look at the in camera filings to the see the extent of the six you have on the docket the references where the defendants themselves the i refer you to letters twelve eighty one letter six eighty one letter twenty nine where people said this is a real problem those are the people in to speak up and as my father said that takes quite a bit of courage so another another most people do we know is i am going back to figure out we know they're still pursuing individual calls with you know i don't believe that any of those is the other defendants to settle a proposals and then telling the class representatives that the defendants don't like this idea so we're scrapping it and you guys she does it i have never seen a case so that's that's fairly strong i mean if  most of the certainly the name representatives i remember very clearly were distinctly opposed and there was a lot of opposition more than than here so even if we assume that there are we discount letters the real problem it seems to me is in every litigation there are going to be people who are disappointed with the outcome usually the people who are settling are not happy with the settlement they wish they had more  the the problem is is this a reasonable settlement and one of the things that i was moved by in the defense of the settlement was that some of the things that you folks are asking for are things that the lawyers thought they could never have been gotten a settlement because the defendant would never give in and be could not be gotten in a success even as forms of relief and so the question is why do you think that some of the things that you wish you had got quite understandably wish you had gotten why do you think those are things that could have been seen if the litigation went to a conclusion well because before the settlement money was on the table the attorney specifically told us that with regards to the strength of the case that that's where we were were charged or targeted going and the extent of the evidence which is all in the record shows a clear and i trust violation and the law of this circuit is very clear on the need for early for those the one case we say i'd accept state specifically antitrust matters are a primary public concern so that being true but i think i can pick up on george lynch's last line of question question yes again why do you think that some of the things that were obtained were things that you could have done better that you could have done better than if you had pursued or if the class had pursued litigation right through to the well because the a lot of the reliefs in the settlement don't even touch on the central  basically existing for supply agreements are good are are ok to stay no new ones unless a new one is necessary so essentially there's nothing there that's it's hard to not do better than nothing anything else that you want to know sir thank you very much  thank you thank you oh