1. What is this Notice and why should I read it?

Transcription

1 NOTICE OF PROPOSED CLASS ACTION SETTLEMENT In Re: Aurora Dairy Corp. Organic Milk Marketing and Sales Practices Litigation Civil Litigation No. 4:08-md ERW (ALL CASES) If you purchased Milk Products (organic milk and/or butter) produced by Aurora Organic Dairy and sold in the U.S. under certain brands, including but not limited to, Aurora Organic Dairy s High Meadow brand, Costco s Kirkland brand, Safeway s Safeway Select and O Organics brands, Target s Archer Farms brand, Wal-Mart s Great Value brand, and/or Wild Oats Wild Oats brand, you may be entitled to compensation. IMPORTANT PLEASE READ THIS NOTICE CAREFULLY THIS NOTICE RELATES TO THE PENDENCY OF A CLASS ACTION LAWSUIT AND, IF YOU ARE A SETTLEMENT CLASS MEMBER, CONTAINS IMPORTANT INFORMATION ABOUT YOUR RIGHTS TO MAKE A CLAIM UNDER THE SETTLEMENT OR TO OBJECT TO THE SETTLEMENT 1 (A federal court has authorized this Notice. It is not a solicitation from a lawyer.) SUBMIT A CLAIM FORM COMPLETED ONLINE OR POSTMARKED BY March 13, 2013 EXCLUDE YOURSELF FROM THE SETTLEMENT CLASS BY January 28, 2013 COMMENT OR OBJECT BY January 28, 2013 ATTEND A HEARING ON February 26, 2013 at 9:00 a.m. DO NOTHING Your legal rights are affected whether or not you act. Please read this Notice carefully. YOUR LEGAL RIGHTS AND OPTIONS IN THIS SETTLEMENT The only way to receive a cash payment. Receive no cash payment. This is the only option that allows you to pursue claims alleged in the Litigation against the Defendants by filing your own lawsuit at your own expense. Write to the Court about why you do, or do not, like the Settlement. You must remain in the Settlement Class to comment in support of, or make an objection to, the Settlement. Ask to speak to the Court about the fairness of the Settlement (if you filed a request to do so by January 28, 2013). (The location, date and time of the Fairness Hearing is subject to change by Court Order. See Question No. 11 below.) Receive no cash payment and give up your rights to pursue your own lawsuit at your own expense. Your rights and options, and the deadlines to exercise them, are explained in this Notice. 1. What is this Notice and why should I read it? This Notice is to inform you of the settlement of a class action lawsuit entitled In Re: Aurora Dairy Corp. Organic Milk Marketing and Sales Practices Litigation, Case No. 4:08-md ERW (ALL CASES) (the Litigation ), brought on behalf of retail purchasers of Milk Products produced by Aurora Organic Dairy, and pending before Judge E. Richard Webber in the United States District Court for the Eastern District of Missouri (the Court ). You need not live in Missouri to get a benefit under the Settlement. The Court has granted preliminary approval of the Settlement and has set a final hearing to take place on February 26, 2013 at 9:00 a.m. in the Thomas F. Eagleton U.S. Courthouse, located at 111 South 10th Street, St. Louis, MO to determine if the Settlement is fair, reasonable and adequate, and to consider the request by Class Counsel for Attorneys Fees and Expenses and Service Awards for the Named Plaintiffs. This Notice describes the Settlement. Your rights and options and the deadlines to exercise them are explained in this Notice. This Notice and the Settlement Agreement in its entirety are posted on the Settlement Website, and are also available from the Claims Administrator. Other documents available on the Settlement Website include the Second Amended Master Complaint filed in the Litigation and the papers that are or will be filed with the Court requesting preliminary and final approval of the Settlement described in this Notice. If you are a Settlement Class Member, your legal rights are affected regardless of whether you act. 2. What is this Litigation about? Beginning in September 2007, the Named Plaintiffs in the Litigation brought multiple class action lawsuits on behalf of themselves and others who purchased Milk Products produced by Aurora Organic Dairy including Milk Products sold by Aurora Organic Dairy under the High Meadow brand, Costco under the Kirkland brand, Safeway under the Safeway Select and O Organics brands, Target under the Archer Farms brand, Wal-Mart under the Great Value brand, and Wild Oats under the Wild Oats brand. The various class actions generally alleged that Aurora Organic Dairy and the foregoing retailers (collectively, Defendants ) made false and misleading representations and omitted material information about the manner in which the Milk Products were produced and that Defendants had breached their expressed and implied warranties. Plaintiffs have sought to recover damages that they allege Defendants conduct caused, as well as attorneys fees and costs. 1 Capitalized terms not otherwise defined herein shall have the meanings ascribed to them in the Class Litigation Settlement Agreement and Release ( Settlement Agreement ) available on the Settlement Website at

2 Defendants denied and continue to deny all allegations of wrongdoing and liability and, following consolidation of the various class actions, moved to dismiss the Litigation in its entirety. The District Court initially dismissed the entire Litigation, including the claims that Defendants had wrongfully labeled the Milk Products organic. The Plaintiffs appealed the dismissal of all their claims, and the United States Court of Appeals for the Eighth Circuit held that the Milk Products were properly labeled as organic under federal law. The Eighth Circuit further held, however and without considering the merits, that certain of the alleged claims against Defendants may survive and remanded certain of those claims to the Court for further consideration. Defendants have denied and continue to deny any and all remaining claims in the Litigation and any and all wrongdoing and liability. Plaintiffs have decided to settle the claims against Defendants on behalf of themselves and all members of the nationwide Settlement Class by entering into the Settlement Agreement. The individuals on whose behalf the Settlement has been made are called Settlement Class Members. The individuals who make up the Settlement Class (i.e., the Settlement Class Members) are described in Question No. 4 below. The Settlement has already been preliminarily approved by the Court. Nevertheless, because the settlement of a class action determines the rights of all members of the proposed class, the Court must give final approval to the Settlement before it can take effect. The Court has conditionally certified the Settlement Class for settlement purposes only, so that members of the Settlement Class can be given this Notice and the opportunity to exclude themselves from the Settlement Class, voice their support or opposition to final approval of the Settlement, and explain how those who do not exclude themselves from the Settlement Class may submit a Claim Form to obtain the relief offered by the Settlement. If the Settlement is not given final approval by the Court or the Parties terminate it, the Settlement will be void and the Litigation will continue as if there had been no Settlement and no certification of the Settlement Class. 3. Why is there a Settlement? Although the Court has not yet resolved the merits of the lawsuit, or determined whether the Plaintiffs or Defendants contentions are true, the Parties have agreed to settle the Litigation. Defendants deny all allegations of wrongdoing and liability and assert that their conduct was lawful. Defendants are settling to avoid the substantial cost, inconvenience and disruption of litigation. Plaintiffs and their attorneys believe that the Settlement is in the best interests of the Settlement Class because it provides an appropriate recovery for Settlement Class Members now while avoiding the substantial risk, expense and delay of pursuing the case through trial and any additional appeals. 4. Who is included in the Settlement? The class covered by the Settlement (the Settlement Class ) is defined as follows: all persons in the United States and/or the District of Columbia who purchased, for personal use and not for resale, organic milk, organic butter, organic cream and organic non-fat dry milk produced, processed, marketed and/or sold by Aurora Organic Dairy and its affiliates ( Milk Products ), including but not limited to the Milk Products sold under Aurora Organic Dairy s High Meadow brand, Costco s Kirkland brand, Safeway s Safeway Select and O Organics brands, Target s Archer Farms brand, Wal-Mart s Great Value brand, and Wild Oats Wild Oats brand, on or before September 14, Excluded from the Settlement Class are: (i) Defendants and their respective subsidiaries and affiliates, employees, officers, directors, agents, and representatives and their family members; (ii) Class Counsel; (iii) the judges who have presided over the Litigation; and (iv) all persons who have timely elected to become Opt-Outs from the Settlement Class in accordance with the Court s Orders. 5. What Milk Products are included in the Settlement? The Settlement includes, but is not limited to, the Milk Products (i.e., organic milk and dairy products including organic butter, organic cream, and organic non-fat dry milk) identified in Appendix A attached to this Notice. 6. What does the Settlement provide? a. Cash Payments and Prospective Relief. The Parties have agreed to the certification of this case as a class action solely for the purposes of Settlement. They have also agreed to create a Settlement Account in the amount of $7,500,000 (the Cash Settlement Amount ) to be funded by Aurora Organic Dairy and its insurers. Except for the costs to implement certain prospective relief relating to Aurora Organic Dairy s dairy farming practices, discussed further below, all Settlement costs including, without limitation, Cash Awards, Monitoring Costs, Notice and Administration Costs, Attorneys Fees and Expenses, Service Awards and Taxes (collectively, Settlement Costs ), will be paid from the Settlement Account. The Parties have further agreed that each Settlement Class Member, with or without Valid Proofs of Purchase, who files a valid, timely and sworn Claim Form that he/she purchased one or more Units of Milk Products, shall be entitled to a one-time Cash Award of up to $10.00 ( Category A Claim ). Each Settlement Class Member, who provides a Valid Proof of Purchase for twenty-one (21) or more Units of Milk Products and files a valid, timely and sworn Claim Form, shall be entitled to claim the Category A Claim payment plus additional Cash Awards, up to a maximum total Cash Award of $30.00, depending upon the number of Units of Milk Products purchased ( Category B Claim ). If Category A Claims and Category B Claims exceed the total amount of funds available in the Settlement Account following satisfaction of the Settlement Costs, Cash Awards will be reduced on a pro rata basis so that the Category A Claims and Category B Claims will equal the funds available in the Settlement Account following satisfaction of the remaining Settlement Costs. If funds remain in the Settlement Account after all Settlement Costs including all Cash Awards have been satisfied, the remaining funds will be donated to court-approved charities. Finally, Aurora Organic Dairy has agreed to prospective relief. Aurora Organic Dairy has agreed for a three-year period to maintain and annually certify certain existing farming practices at its Platteville, Colorado dairy by agreeing to a Stipulated Injunction that will be monitored by a Court-appointed independent third party who is knowledgeable and experienced in organic dairy practices. The injunctive and equitable relief is detailed in Sections VI.A-D of the Settlement Agreement. 2

3 b. Process. To be eligible for a Cash Award pursuant to the Settlement, a Settlement Class Member must submit one (1) valid, timely and sworn Claim Form to the Claims Administrator that: (i) is postmarked (or received, if submitted online) by March 13, 2013, (ii) contains all of the required information set forth in the Claim Form, and (iii) is signed (physically or electronically) by the Settlement Class Member submitting the Claim Form. You can file your completed Claim Form online or download a Claim Form by going to and following the instructions provided on the website. You can also obtain a Claim Form by writing to the Claims Administrator at Aurora Organic Dairy Litigation Settlement, c/o Gilardi & Co. LLC, P.O. Box , Petaluma, CA or by calling toll free Your completed Claim Form must be postmarked or completed online by March 13, You can only and need only submit one (1) Claim Form regardless of the number of Units of Milk Products that you purchased. 7. Who represents the Settlement Class? Class Representatives. For purposes of the Settlement, the Court has appointed Plaintiffs Diane Benya, Paul Bowen, Steven Joel Clark, Levitte Cruz, Brenda Gallardo, Tammy Gardner Coselli, Elida Gollomp, Caryn Hudspeth, Hans Kueck, Leonie Lloyd, Lisa Meacham, Debbie Millikan, Donita Lynn Robinson, Scott Ross, Jim Snell, April Subashe, Claire Theodore, Vicki Tysseling-Mattiace, Rachel VerNooy and Odelia Weiss to serve as the Class Representatives. Class Counsel. For purposes of the Settlement, the Court has approved the appointment of the following counsel for the Settlement Class: Don M. Downing Gray, Ritter & Graham P.C. 701 Market Street, Suite 800 St. Louis, Missouri Telephone: (314) Facsimile: (314) Elizabeth A. Fegan Hagens Berman Sobol Shapiro LLP 1144 W. Lake Street, Suite 400 Oak Park, Illinois Telephone: (708) Facsimile: (708) You will not be charged for the services of Class Counsel. If you want to be represented by your own counsel, you may hire one at your own expense. 8. What are the amounts of Class Counsel s Fees, Expenses and Named Plaintiff Service Awards? To date, Class Counsel have not been paid any attorneys fees. In compensation for some of their time and risk in prosecuting the litigation on a wholly contingent fee basis, Class Counsel will collectively request, as part of the final approval of this Settlement, that the Court approve a payment of up to $2,500,000 total in attorneys fees plus the reimbursement of actual out-of-pocket expenses ( Attorneys Fees and Expenses ). Class Counsel will also ask the Court to approve Service Awards of up to $5,000 to each Named Plaintiff for the time and effort they contributed to the prosecution of the Litigation. Defendants have agreed not to object to the applications for Attorneys Fees and Expenses and the Service Awards. The payment for the Attorneys Fees and Expenses and the Service Awards will come from the Settlement Account. Any Attorneys Fees and Expenses and Service Awards will be awarded only as approved by the Court in amounts to be determined to be fair and reasonable. 9. What is the effect of final approval of the Settlement? If the Court approves the proposed Settlement, the Litigation will be dismissed, and Aurora Organic Dairy will provide the benefits described above to the Settlement Class Members who have not excluded themselves from the Settlement Class and, to receive a Cash Award, have submitted a valid, timely and sworn Claim Form. After the Litigation is dismissed, no Settlement Class Member who did not request exclusion will be able to file his or her own lawsuit for recovery for any of the Released Claims. If you want to bring your own lawsuit, you must exclude yourself from this Settlement. 10. What are my options? As a Settlement Class Member, you have the following options: a. Participate In The Settlement. If the Court approves the Settlement, you will automatically become eligible to receive the benefits described above. If you wish to claim a Cash Award, you must timely complete and submit a Claim Form to the Claims Administrator by March 13, If you wish to comment in favor of the proposed Settlement, you may mail your comment to the Claims Administrator at Aurora Organic Dairy Litigation Settlement, c/o Gilardi & Co. LLC, P.O. Box , Petaluma, CA , who will forward your comments to Class Counsel, Aurora Organic Dairy and the Court. Alternatively, you may send your comments directly to Class Counsel. b. Exclude Yourself From The Settlement ( Opt-Out ). If you wish to be excluded from the Settlement Class, you must send a written exclusion request to the Claims Administrator by U.S. Mail, postage prepaid, postmarked no later than January 28, 2013 to the following address: Aurora Organic Dairy Litigation Settlement, c/o Gilardi & Co. LLC, P.O. Box 8090, San Rafael, CA A request to exclude yourself from the Settlement Class must include (1) your name, (2) address, (3) the Milk Product(s) that you purchased, and (4) a signed statement indicating your wish to be excluded from the In re: Aurora Dairy Corp. Organic Milk Marketing and Sales Practices Litigation Settlement Class. Exclusions, or opt outs, shall be allowed on an individual basis only, and mass or class opt outs are not allowed. If you do not timely submit an Opt-Out request including all of the above information, you will be bound by the Settlement and all of your claims for any of the Released Claims will be released. If you validly and timely request exclusion from the Settlement Class, you will not be bound by the Final Order and Judgment entered in this Litigation. Excluding yourself means you cannot receive any of the Settlement benefits or comment upon the Settlement, but you will be able to file a lawsuit on your own behalf. If you have any questions concerning these procedures, please contact the Claims Administrator or Class Counsel. 3

4 c. File Written Objections. If you are a member of the Settlement Class and you do not wish to be excluded, you may object to the terms of the Settlement, the Attorneys Fees and Expenses or to the Service Awards. If you object and the Settlement is approved, you will be barred from bringing your own lawsuit and you will be bound by the Final Order and Judgment entered in this Litigation. You may, but need not, enter an appearance through counsel of your choice. If you do retain counsel, however, you will be responsible for your own counsel s fees and costs. If you object to the Settlement, you or your counsel must, on or before January 28, 2013, file with the Court and serve on Class Counsel at the above addresses a written objection including: (i) your full name, address and telephone number; (ii) a description of the Milk Products you purchased and, to the extent available, the purchase information set forth in Paragraph XII.F of the Settlement Agreement; (iii) Valid Proof(s) of Purchase, if any, of Milk Products; (iv) a written statement of all grounds for the objection accompanied by any legal support for your objection; (v) copies of any papers, briefs, or other documents upon which the objection is based; (vi) a statement of whether either you or your counsel intend to appear at the Fairness Hearing; and (vii) your signature, even if you are also represented by counsel. If you intend to appear at the Fairness Hearing through counsel, the objection must also state the identity of all attorneys representing you who will appear at the Fairness Hearing. In addition, any Settlement Class Member who intends to appear and address the Court at the Fairness Hearing through counsel must, on or before January 28, 2013, file with the Clerk of the Court a notice of appearance and, if necessary, a pro hac vice application. The address for filing any documents with the Court is Thomas F. Eagleton U.S. Courthouse, located at 111 South 10th Street, St. Louis, MO Settlement Class Members who do not timely make their objections in accordance with the procedures set forth above waive all objections and may not be heard at the Fairness Hearing or have the right to appeal approval of the Settlement. If you have any questions concerning these procedures please contact Class Counsel. d. Do Nothing. If you are a member of the Settlement Class and do nothing, you will not receive a Cash Award from the Settlement. You must submit a Claim Form to obtain money under the Settlement. Even if you do nothing, you will be bound by the release provisions contained in the Settlement with Defendants. 11. When and where will the Court hold a hearing on the fairness of the Settlement? A hearing will be held before the Judge E. Richard Webber on February 26, 2013 at 9:00 a.m. at the Thomas F. Eagleton U.S. Courthouse, located at 111 South 10th Street, St. Louis, MO At the Fairness Hearing, the Court will decide whether the proposed Settlement is fair, reasonable, and adequate and should be approved and, if so, whether to approve the Attorneys Fees and Expenses and Service Awards. The time, date and location of this Fairness Hearing may be changed by the Court without further notice to you. If you plan to attend the hearing, you should confirm its time, date and location. Any updates or changes on the time, date or location of this hearing will be posted on the Settlement Website, Do I have to come to the Fairness Hearing? You do not need to attend the Fairness Hearing to remain a Settlement Class Member, submit a claim for a Cash Award or to file an objection to or comment on the Settlement. Class Counsel will respond to any questions the Court may have. However, you or your own counsel may attend the Fairness Hearing if you wish, at your own expense. The Court, however, has the right to require you or your counsel to attend the Fairness Hearing. If the Court requires you or your counsel s attendance at the Fairness Hearing, you and/or your attorney will be notified by the Court or by Class Counsel. If you do not exclude yourself from the Settlement Class, you may ask the Court for permission to speak at the Fairness Hearing concerning the proposed Settlement or the application of Settlement Class Counsel for Attorneys Fees and Expenses or Service Awards by following the instructions in Question No. 10(c) above. 13. How do I receive my share of the Settlement? If you do not exclude yourself from the Settlement Class and would like to receive a Cash Award, you must submit a timely, valid and sworn Claim Form as set forth in the answer to Question No. 6 above. If you would like to receive a Cash Award based on a Category B Claim, you must also submit Valid Proof(s) of Purchase along with a timely, valid and sworn Claim Form as set forth in the answer to Question No. 6 above. Acceptable Proof(s) of Purchase include product packaging, receipts, or other records showing you purchased the Milk Products. Claim Forms and Valid Proof(s) of Purchase must be postmarked or submitted online by March 13, You can file a claim online or download a copy of the Claim Form at or obtain a copy of the claim form by writing to the Claims Administrator at Aurora Organic Dairy Litigation Settlement, c/o Gilardi & Co. LLC, P.O. Box , Petaluma, CA or by calling toll free The Court overseeing this case still has to decide whether to approve the Settlement. Distribution of cash payments will be made if the Court approves the Settlement and after any appeals are resolved. 14. What happens if I do nothing at all? If you do nothing, you will receive no Cash Award from the Settlement. You will still be part of the Settlement Class, however, and subject to the release described in Paragraph XVI.B of the Settlement Agreement. This means you will not be permitted to continue to assert Released Claims in the Litigation or in any other case against the Defendants or other persons or entities covered by the Release. Please refer to Paragraph XVI.B of the Settlement Agreement for a full description of the claims and persons who will be released upon final approval of the Settlement. 15. How can I get additional information? For additional information, you may contact Class Counsel at the addresses indicated above in response to Question No. 7 above or the Claims Administrator at Aurora Organic Dairy Litigation Settlement, c/o Gilardi & Co. LLC, P.O. Box , Petaluma, CA The Claims Administrator is not an affiliate of any party to the Litigation. Alternatively, you can visit the Settlement Website. Please do not contact the Clerk of Court or the Judge regarding this Notice. Instead, please direct any inquiries to any of the Class Counsel listed above or contact the Claims Administrator. 4

5 APPENDIX A List Of Products Producer/ Retailer Aurora Product/Brand High Meadow organic half gallons in fat free, 2% and whole milk High Meadow organic salted butter (1 lb. package) Costco Kirkland Signature organic 2% 3-pack half gallons Kirkland Signature organic 1% 3-pack half gallons Kirkland Signature organic salted butter (2 pk 1 lb. packages) High Meadow organic salted butter (2 pk 1 lb. packages; 3pk 1 lb. packages) Safeway Safeway Select organic half gallons in fat free, 1%, 2% and whole milk O Organics half gallons in fat free, 1%, 2% and whole milk O Organics gallons in fat free, 1%, 2% and whole milk O Organics salted and unsalted butter (1 lb. packages) Target Archer Farms organic half gallons in fat free, 1%, 2% and whole milk Archer Farms organic salted and unsalted butter (1 lb. packages) Wal-Mart Great Value organic half gallons in fat free, 2% and whole milk Great Value organic half gallons in 1% Great Value organic gallons in fat free and 1% Great Value organic gallons in 2% and whole milk Wild Oats Wild Oats Organic half gallons in fat free, 1%, 2% and whole milk Wild Oats Organic salted and unsalted butter (1 lb. packages) 5