Blueberry settlements nearly finished

AUGUSTA – The Superior Court justice overseeing the wild blueberry industry case granted preliminary approval Friday to settlements proposed by three of the four processors charged with fixing prices paid to the state’s growers over four years in the late 1990s.

In a 50-minute hearing at the Kennebec Superior Court, Justice Joseph Jabar said he will set a date during the last week of June for a final hearing at Knox County Superior Court in Rockland.

“Everyone with a concern about the settlements will have plenty of notice and opportunity to be heard,” said William Robitzek, the attorney for an estimated 500 growers during the civil suit that began more than four years ago.

“What the judge found today is that the proposed settlements are within the range of what he might consider to be a fair end to the lawsuit.”

The state’s four largest processors had been accused of price fixing, and three of them – Cherryfield Foods Inc. of Cherryfield, Jasper Wyman & Son of Milbridge and Allen’s Blueberry Freezer of Ellsworth – were found guilty in November. The fourth and smallest of the four processors, Merrill’s Blueberry Farms of Ellsworth, avoided the high-profile trial by agreeing to an $85,000 settlement in advance of the trial.

Eager to pare down their shares of responsibility for the $56 million awarded in damages, Cherryfield Foods and Wyman’s struck agreements with the growers in February through mediation overseen by the state commissioner of agriculture.

Those settlements – $2.5 million for Cherryfield Foods and $1.5 million for Wyman’s, plus some noncash terms – are what gained preliminary approval Friday, as did Merrill’s $85,000 amount.

Still immersed in the legal battle is Allen’s, which has not settled with the growers and continues to object to the noncash terms proposed by the two companies that have settled.

Allen’s had been asked by the mediator in February, at the time the two other processors reached agreements, to settle its portion of the case for $1 million. Allen’s counteroffered with $400,000, an amount rejected by the four original growers involved in face-to-face negotiations with the processors.

Earlier this week, Robitzek said, Allen’s offered to settle for $500,000. The growers intend to reject that.

“They are just astounded, considering the commissioner of agriculture’s recommendation of $1 million,” Robitzek said. “Allen’s is still talking numbers that are just half of what the mediator suggested in February.”

Jabar will not set an exact date for the final hearing in June until he checks with Knox County Superior Court’s calendar. Notice of the final hearing date will appear at least three times in the Bangor Daily News’ legal advertisements.

Anyone who wants to oppose the settlement must file his intentions with the Knox County Superior Court clerk at least seven days before the hearing.

Cherryfield Foods’ settlement terms would guarantee Cherryfield growers a minimum field price of 34 cents per pound for the next four years. It includes a commitment to extend the minimum field price to non-Cherryfield growers who will agree to sell their crop to Cherryfield during the same four-year period.

The Wyman’s agreement would guarantee all Wyman growers an initial payment of 25 cents per pound at the time of harvest for the next five years. Merrill’s agreement would pay $85,000 in a single payment within 10 days of the judge’s final approval.

Among the other terms of the proposed settlement approved so far by Jabar, the four original plaintiffs would receive an amount up to $10,000 as “awards for services.”

The attorneys for the growers are seeking reimbursement of legal expenses estimated at $660,000.

If the settlements gain final approval, growers who file claims will receive one payment a year from the settlement fund between 2004 and 2008.

The attorney for Allen’s, Jeff Thaler of Portland, tried to argue Friday that the noncash terms by Cherryfield Foods and Wyman’s were in effect price fixing all over again. He told the court that by setting floor prices in advance, Allen’s and other processors could be adversely affected if they have to keep up with what the state’s two largest processors are offering growers.

The judge rejected Allen’s objections.

“The three settlements are three separate agreements between growers and individual processors,” Jabar reasoned. “The terms are all different, and there is no evidence that the three parties set their terms together.

“We will next give class members the opportunity to speak [at the final hearing], and we will go from there,” he said.