Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.


February 18, 2004.

MERCK KGaA., Defendants

The opinion of the court was delivered by: THOMAS HOGAN, Chief Judge

MEMORIALIZING OPINION Re: Final Approval of Biotin and Niacin Defendants Settlements
Pending before the Court is class plaintiffs' Motion pursuant to Fed. R. Civ. P. 23(e) and 54 for Final Approval of Settlement Between Class Plaintiffs and Defendants Sumitomo Chemical Co., Ltd., Sumitomo Chemical America, Inc., Tanabe Seiyaku Co., Ltd., Tanabe USA, Inc., Lonza Group Ltd., Lonza AG, Lonza Inc., Degussa AG, Degussa Corp., Nepera Inc., Reilly Industries, Inc., and Reilly Chemicals, S.A. (hereinafter, the "Biotin and Niacin Defendants") and for Entry of Final Judgment. Upon careful consideration of class plaintiffs' Motion, the representations made at the February 18, 2004 hearing on final approval, and the entire record herein, and in accordance with the Court's February 18, 2004 bench opinion, class plaintiffs' Motion for Final Approval and for Entry of Final Judgment is granted.


  The proposed settlements are the fifth, sixth, seventh and eighth partial class settlements Page 2 arising from litigation surrounding a worldwide conspiracy or conspiracies to fix prices and allocate markets for the sale of bulk vitamins. On October 14, 2003, the Court preliminarily approved the proposed settlements with the Biotin and Niacin Defendants and certified the settlement class. The Vitamin Products Class consists of all persons or entities who directly purchased vitamins A, C, E, B1, B2, B3, B5, B6, B9, B12, H, beta carotene, astaxanthin, canthaxanthin and/or vitamins premixes for delivery in the United States from any of the Defendants or their co-conspirators from January 1, 1988 through December 31, 1998 (excluding all governmental entities, and defendants, their co-conspirators, and their respective subsidiaries and affiliates). The Settlement Agreements provide that the Biotin and Niacin Defendants will make a cash payments totaling $105,930,000.00 plus interest for the benefit of the Vitamin Products Class.

  The Settlement Agreements will dismiss all claims against the Biotin and Niacin Defendants. The release does not include any potential or current claims based upon purchases of vitamin products sold outside the United States or for delivery outside the United States, nor does it include claims based on indirect purchases of vitamins products.


  Approval of the proposed class action settlement lies within the discretion of this Court. United States v. District of Columbia, 933 F. Supp. 42, 67 (D.D.C. 1996). Fed.R.Civ.P. 23(e) provides that:

  A class action shall not be dismissed or compromised without the approval of the court, and notice of the proposed dismissal or compromise shall be given to all members of the class in such manner as the court directs. Page 3

 Fed.R.Civ.P. 23(e). The Rule 23 requirements are fully consistent with the long-standing judicial attitude favoring class action settlements. Mayfield v. Barr, 985 F.2d 1090, 1092 (D.C. Cir. 1993). "The Court must eschew any rubber stamp approval . . . yet, at the same time, must stop short of the detailed and thorough investigation that it would undertake if it were actually trying the case." United States v. District of Columbia, 933 F. Supp. at 47. The exercise of this discretion, however, is constrained by the "principle of preference" favoring and encouraging settlements in appropriate cases. Pigford v. Glickman, 185 F.R.D. 82, 103 (D.D.C. 1999).

  There is no single test in this Circuit for determining whether a proposed class action settlement should be approved under Rule 23(e). Pigford, 185 F.R.D. at 98. Generally, in determining whether settlement should be approved, courts consider whether the proposed settlement "is fair, reasonable, and adequate under the circumstances and whether the interests of the class as a whole are being served if the litigation is resolved by settlement rather than pursued." Manual for Complex Litigation (Third), § 30.42 at 238 (1995). In making this determination, courts in this Circuit have examined the following factors: (a) whether the settlement is the result of arm's length negotiations;*fn1 (b) the terms of the settlement in relation to the strength of plaintiffs' case;*fn2 (c) the status of the litigation at the time of settlement;*fn3 (d) the Page 4 reaction of the class;*fn4 and, (e) the opinion of experienced counsel.*fn5

 A. Arm's Length Negotiations

  A "presumption of fairness, adequacy, and reasonableness may attach to a class settlement reached in arm's length negotiations between experienced, capable counsel after meaningful discovery." Manual for Complex Litig., at § 30.42. According to plaintiffs' counsel, the Biotin and Niacin Defendants' settlements were reached through "extensive arm's length negotiations, undertaken in good faith, and after years of extensive factual investigation., legal analysis, discovery, motion practice, and trial preparation." P1's Memo. at 10. This Settlement was negotiated by very experienced antitrust and class action attorneys. Because there is nothing in the course of the negotiations or the face of the Settlement that "disclose[s] grounds to doubt its fairness," id. (citing Manual for Complex Litig., at § 30.41), the Court finds that the Settlement at issue was the result of arms' length negotiations and is thus presumptively fair, adequate and reasonable.

 B. Terms of Settlement

  Under the terms of the Settlement Agreements, the Biotin and Niacin Defendants have paid $105,930,000.00 plus interest to settle the claims of the Vitamins Products Class. The settlement amount is significant compared to past settlements in this litigation. The first class settlement in this case involved defendants that held over ninety percent of U.S. vitamin sales, Page 5 and resulted in a payment by those companies of $1.05 billion before opt outs resulting in a distribution to the class after opt outs of $247 million plus $123 million in attorneys fees. The Defendants involved in these settlements possessed less than 3.5 percent of the global market share for all vitamins, yet the Vitamins Products Class will receive $106 million from the current settlements. Furthermore, the settlements represent over 75 percent of the approximately $137,000,000 in U.S. purchases made by the Vitamins Products Class from the Biotin and Niacin Defendants.

  Given the complexities of proof in antitrust cases and the ordinary risks and delays inherent in complex antitrust litigation, the Settlements appears to provide a significant benefit to the Class. Defendants would also appear to benefit from an early and definite resolution to this dispute. Therefore, after weighing the possibilities of recovery and the risks and expenses of protracted litigation for both sides, the Court finds that the ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.