Food & Agriculture Quarterly January 2019 | Page 13

FOOD & AGRICULTURE QUARTERLY | JANUARY 2019
Current antitrust
suits for food and
agriculture
JETTA SANDIN
Generally speaking, competitors in a market are prohibited by our
antitrust laws from working together. But our laws make an exception
for farmers and allow them, under certain circumstances, to come
together and work cooperatively to market and sell their goods. This
exception is known as the Capper-Volstead Act. If the farmers do not
follow the requirements of the law to a T, they can find themselves
entangled in very long, and very expensive, litigation, facing treble
damages. Currently, there are several long running agricultural antitrust
cases involving issues of supply management programs, the status of
integrated producers, inadvertent inclusion of non-producer entities as
members and other cooperative behaviors. This article provides a brief
overview of some of these cases and where they stand.
Cranberries
In 2012, Ocean Spray, an agricultural cooperative made up of
cranberry growers, was sued by a group of independent cranberry
growers and some of its own members that belong to its “B Pool.”
The B Pool came about in 2006 when Ocean Spray split its members
into two groups: A Pool and B Pool. According to plaintiffs in Winters
v. Ocean Spray Cranberries, Inc., No. 1:12-cv-12016 (D. Mass.), the
manner in which the members of these two pools are compensated
for their cranberries put the two groups at odds with one another. The
plaintiffs allege that the operations of Ocean Spray’s B Pool and its
cranberry concentrate commodity auction violate Sections 1 and 2 of
the Sherman Act, the Capper-Volstead Act, a 1957 Consent Decree
and Massachusetts’ unfair trade practices laws.
While many of the claims have been dismissed as the result of
two rounds of summary judgment motions, the B Pool members’
monopsonization claim has survived, as have as some state law claims.
The case is currently pending before the U.S. Court of Appeals for the
First Circuit on interlocutory appeal. Ocean Spray is seeking review
of the lower court’s rulings regarding the applicability of Illinois Brick,
which is a doctrine that precludes indirect purchasers from suing under
federal antitrust laws.
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