GLD-141                                                NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ___________

                                     No. 12-1151
                                     ___________

       IN RE: CHOCOLATE CONFECTIONARY ANTITRUST LITIGATION
                                   *Clyde F. Padgett,
                                                Appellant

                             *(Pursuant to F.R.A.P. 12(a))
                      ____________________________________

                   On Appeal from the United States District Court
                        for the Middle District of Pennsylvania
                 (D.C. Civil Nos. 1-08-MDL-01935 & 1-09-cv-02132)
                   District Judge: Honorable Christopher C. Conner
                     ____________________________________

                  Submitted on Appellees’ Motion for Dismissal
                    for Lack of Jurisdiction or Lack of Merit
                                 March 15, 2012
       Before: FUENTES, GREENAWAY, JR., and NYGAARD, Circuit Judges

                            (Opinion filed: March 20, 2012)
                                      _________

                                       OPINION
                                       _________

PER CURIAM

      Clyde F. Padgett appeals an order of the District Court granting final approval to a

proposed class-action settlement between a subclass of Indirect End-User Plaintiffs (―IEU

Plaintiffs‖) and defendants/appellees Cadbury Holdings, Ltd., Cadbury plc, and Cadbury

Adams Canada, Inc. (―Cadbury‖). Cadbury has moved to dismiss this appeal, arguing
that we lack appellate jurisdiction and that the appeal is frivolous. Although, for the

following reasons, we determine that jurisdiction is properly vested in this Court, we will

construe Cadbury’s motion as requesting summary action under 3d Cir. LAR 27.4 and

IOP 10.6 and will summarily affirm the order of the District Court.

                                             I.

       This appeal arises out of a class action in which the defendants were accused of

conspiring ―to fix the prices of chocolate confectionary products in the United States.‖1

In re Chocolate Confectionary Antitrust Litig., 602 F. Supp. 2d 538, 548 (M.D. Pa.

2009). In August of 2011, the District Court granted preliminary motions of settlement

approval for three plaintiff subclasses: direct purchasers for resale (ECF No. 10232), IEU

plaintiffs (ECF No. 1024), and indirect purchasers for resale (ECF No. 1025). The

relevant District Court order defined the IEU class as:

       All persons and/or entities residing in the United States who indirectly
       purchased Chocolate Candy, for their own use and not for resale, from
       any Defendant or any predecessor, controlled subsidiary, affiliate or
       division of any Defendant, in, or for delivery into, any state that has
       enacted a statute extending standing to indirect purchasers asserting
       claims under state or local antitrust, unfair competition, consumer
       protection, unfair practices, trade practice, or civil conspiracy law

Order Granting Preliminary Approval of Proposed Settlement with the Cadbury

Defendants (―IEU Preliminary Order‖) ¶ 1; see also Settlement Agreement ¶ 1, ECF No.



1
 As the parties are our principal audience, we will not discuss the factual
background in depth.

                                             2
991-1. Finding that the proposed settlement was ―sufficiently fair, reasonable and

adequate to authorize dissemination of notice to the Settlement Class,‖ the Court directed

plaintiffs’ counsel to publish a Detailed Notice to the settlement class in several

newspapers. IEU Preliminary Order ¶¶ 10, 13. It further instructed that any member of

the class who wished to object to the settlement must do so in a signed, captioned writing

sent to the ―Court, Plaintiffs’ Counsel, and Counsel for the Cadbury Defendants

postmarked no later than Monday, November 28, 2011.‖ IEU Preliminary Order ¶ 18

(emphasis added). Any objection must also ―otherwise comply with the requirements set

forth in the [Detailed] Notice.‖ IEU Preliminary Order ¶ 18.

       The ―Detailed Notice,‖ attached as Exhibit A, set out further instructions.

Potential objectors were told to ―mail [their] written objection[s], including proof of

membership in the Settlement Class and a statement of the nature and grounds for your

objection, to the Clerk of the Court,‖ to be received and filed by a date to be determined.3

IEU Detailed Notice ¶¶ 7–8, ECF No. 1024-1. As eventually published, the Detailed

Notice required that objections be received by the Court ―no later than November 28,

2011.‖ See IEU Detailed Notice, available at

http://www.chocolatesettlementindirect.com/documents/EU-DetailedNotice.pdf (last

visited Mar. 5, 2012).


2
  All ECF numbers refer to entries on the docket for M.D. Pa. Civ. No. 1-08-MDL-
01935.
3
  The placeholder language specified ―within 135 days of the Preliminary Approval
Date.‖
                                              3
       Appellant Padgett, who objected in writing to the terms of the proposed

Settlement, described himself as a ―pro se member of this class action lawsuit by being an

indirect purchaser and consumer,‖ although he enclosed no proof of his status. Padgett

complained that the Settlement Agreement would not deter Cadbury from ―continu[ing]

its deceptive trade practices,‖ cited the ―problematic‖ nature of the ―excessively broad

release‖ contained in the Settlement Agreement, and railed against the use of the

―complete settlement fund‖ to pay attorneys’ fees. See Objection 1–2, ECF No. 1084.

Despite his putative membership in the IEU class, Padgett referred instead to monetary

figures from the proposed Settlement Agreement for the direct-purchaser plaintiff class,

see Direct-Purchaser Detailed Notice ¶ 4, ECF No. 1023-1, and served his objection on

the direct-purchaser attorneys instead of the IEU attorneys. Compare Objection 4, and

Direct-Purchaser Detailed Notice ¶ 6, with IEU Detailed Notice ¶ 6. Padgett deposited

his objection via Express Mail on November 23, 2011; delivery to the District Court was

unsuccessfully attempted on November 26 (a Saturday) and November 28 (a Monday)

before success on November 29. Counsel for the direct purchaser plaintiffs, whom

Padgett had erroneously served, responded by requesting that his objection be overruled.

See Response, ECF No. 1092.

       On December 12, 2011, the District Court granted final approval of proposed

class-action settlements with regard to three plaintiff subclasses, including the IEU class.

See ECF Nos. 1105–07. While signed on December 12, the order relating to the IEU

class—which did not reference or otherwise comment on Padgett’s objections—was
                                             4
entered one day later on December 13. See ECF No. 1107 docket text. Padgett’s notice

of appeal, ECF No. 1133, was received by the District Court on January 12.

                                              II.

       In its motion to dismiss, Cadbury first argues that Padgett’s notice of appeal was

filed more than thirty days after entry of judgment, depriving us of jurisdiction. See 28

U.S.C. § 2107(a); Fed. R. App. P. 4(a)(1)(A); Bowles v. Russell, 551 U.S. 205, 214

(2007). As noted above, however, judgment was entered as per the IEU plaintiffs on

December 13, not December 12. ―[A]lthough an order may be signed by the district

court, received by the clerk, and entered in the docket on different days, the entry date

controls‖ for the purposes of determining timeliness. United States v. Fiorelli, 337 F.3d

282, 287 (3d Cir. 2003); see also Fed. R. Civ. P. 58(a). A notice of appeal is considered

―filed‖ when it is received by the clerk’s office. United States v. Solly, 545 F.2d 874,

876 (3d Cir. 1976). Padgett’s notice of appeal was received by the District Court on

January 12, 2012, thirty days later; it was therefore timely filed.

       Cadbury next argues that Padgett’s objection to the proposed settlement was

neither timely nor proper, depriving him of the ability to appeal. But the District Court

did not rule on the propriety of Padgett’s objection, and we are hesitant to deem its

structural faults to be per se fatal to our exercise of appellate jurisdiction, especially given

an apparent inconsistency in when objections were to be received by the District Court.

       In sum, we are satisfied that we have jurisdiction under 28 U.S.C. § 1291.


                                               5
                                             III.

       Cadbury’s final argument is that Padgett’s objection is meritless and should be

dismissed. On this ground, we are in accord. The objection is wanting, its content

derived from figures present in a settlement agreement that was simply not applicable to

plaintiffs in Padgett’s (the IEU) class. As Cadbury points out, Padgett also misreads

several sections of the Settlement Agreement. For example, Cadbury did not admit

misconduct as part of the Settlement Agreement, and the Agreement hardly forestalled

future legal action in ―every possible scenario conceivable to man,‖ as Padgett claimed.

See, e.g., Settlement Agreement ¶ 36(a) (delineating the claims released); see also In re

Prudential Ins. Co. of Am. Sales Practice Litig., 261 F.3d 355, 366 (3d Cir. 2001) (―It is

now settled that a judgment pursuant to a class settlement can bar later claims based on

the allegations underlying the claims in the settled class action. This is true even though

the precluded claim was not presented, and could not have been presented, in the class

action itself.‖). Padgett’s vague objections and attacks on the financial stability of class

counsel do nothing to shed light on any inequity contained in the Agreement. We

therefore cannot find that the District Court abused its discretion in approving the IEU

Settlement Agreement. See In re Ins. Brokerage Antitrust Litig., 579 F.3d 241, 256 (3d

Cir. 2009).

                                             IV.

       For these reasons, to the extent Cadbury’s motion requests dismissal of Padgett’s

appeal for lack of jurisdiction, the motion is denied. To the extent Cadbury’s motion
                                              6
seeks dismissal for lack of merit, it is treated as a motion for summary affirmance, and so

treated, is granted because the appeal presents no substantial question. Murray v.

Bledsoe, 650 F.3d 246, 247 (3d Cir. 2011) (per curiam).




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