Berry growers may settle case for $21 million Processors cool to possible offer

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Two sources close to negotiations between blueberry processors and growers said Friday that $21 million has been suggested as an amount that could settle their differences.

Speaking on condition of anonymity, the sources said that the $21 million figure surfaced last week in the first face-to-face negotiations between attorneys for the processors and growers.

Coming from the growers’ side, the figure arose during three hours of negotiations Jan. 2. The suggestion, however, angered the processors’ seven attorneys, the sources said.

One source said that the processors planned to show up to negotiations scheduled for Monday but they were not hopeful that a settlement would be reached.

The suggested amount comes after three processors were found guilty, in a class action civil lawsuit concluded this November, of fixing the prices they paid to blueberry growers.

The processors, ordered by Justice Joseph Jabar to pay $56 million in damages, are Allen’s Blueberry Freezer of Ellsworth, Jasper Wyman & Son of Milbridge, and Cherryfield Foods Inc. of Cherryfield.

Last Monday, the processors appealed the case to the Maine Supreme Judicial Court in Portland, saying that the growers abused the class action process.

The impromptu negotiations Jan. 2 preceded a hearing before Justice Jabar in Knox County Superior Court in Rockland. The processors gained some relief in the hearing when Jabar agreed to waive $5 million in interest that had begun to accumulate from the civil jury’s judgment.

The sides have agreed to meet again on Monday for more negotiations in Augusta.

William Robitzek, the Lewiston attorney who has been the lead lawyer representing Maine’s 500 growers in the class action suit, would not comment on last week’s negotiations.

“I am not in a position to comment on any possible numbers,” Robitzek said Friday afternoon. “We are going to have more discussions on Monday, and I don’t want to jeopardize that.”

He said that his manner of working is not to make a settlement offer or demand, but to indicate a dollar figure that he could recommend to his clients.

Any settlement or agreement would need the approval of the court before it could fall into place.

“The processors have indicated that they don’t have the money to pay the judgment,” Robitzek said. “We understand that while they don’t have $56 million in cash, they do have substantial assets, maybe tens of millions of dollars’ worth of land.

“There is nothing to preclude them discussing with us the setting up a land trust for the benefit of the class [the growers], so that profits from any blueberries harvested on that land would go to their benefit.”

Then he said of that possibility: “It’s kind of a curveball.”

While the $21 million said to be suggested is slightly more than the $18.6 million award the jury recommended before the judge tripled it, the sources said there was more to the offer than just that.

The growers were asking for a “five-year, best-price guarantee” to go with the money.

That means that if the processors were to buy a grower’s berries for five years, the processors would have to show they weren’t buying anybody else’s berries for a higher price.

Monday’s negotiations take place at 10 a.m. in Augusta. Robert Spear, the state’s agriculture commissioner, has invited both sides to join with a professional negotiator from the Maine Labor Relations Board.

New to the mix will be two or three growers who may present a grower’s perspective separate from that of the four named plaintiffs.

The processors contend that the four plaintiffs, three of whom came to court for the hearing last week, are hardly “typical” members of the class, which numbers about 500 statewide.

There were 121 growers who opted out of the lawsuit. The class action would automatically include growers if they did not take steps to opt out before the trial.

Spear spent Friday morning working to identify growers whose presence would be acceptable to both sides, if the growers could handle a last-minute invitation to the table.

“There are some people I’d like to have. I’m trying to get people that would make sense,” Spear said. Not wanting to harm the meeting in advance, Spear declined to name the newcomers to the negotiations.

Getting in new growers was suggested by the processors’ attorneys. The growers’ attorneys agreed to the move.

Alan Johnson of Rockport, one of the original four plaintiffs, said he hoped Monday’s meeting could lead to a settlement.

“I don’t expect there will be $56 million paid out; I expect there will be a settlement,” Johnson said. “What we want is a fair price for our berries. That’s the thrust of it. It’s been long overdue.”

Johnson described himself as a relative newcomer to the blueberry business. He has worked his 12 acres for about 20 years.

“We felt the trial was fair, and that the jury made a decision based on the testimony they heard,” Johnson said. “The processors will cry foul forever.”

Cherryfield Foods has engaged a spokesman in Portland since the processors filed their collective appeal.

Looking toward Monday’s meeting, professional spokesman Ted O’Meara said: “The commissioner’s involvement is a positive thing. But there is pessimism by Cherryfield Foods about the discussion, as long as the growers’ focus covers the past alleged damages by processors rather than the future of the industry.”

According to court documents, the processors’ appeal, in part, “raises substantial questions about the abuse of the class action mechanism by a relatively few, small wild blueberry growers to the detriment of the overwhelming majority of other growers.”

Attorneys for the processors said Friday they expect to file a motion to expedite the appeal early next week. How soon the Maine Supreme Judicial Court schedules the appeal depends partly on the response the growers’ attorneys will file in turn.