Food & Agriculture Quarterly June 2020 - Page 21

FOOD & AGRICULTURE QUARTERLY | JUNE 2020 nation clauses and pricing. The parties have completed most pre-trial activities, and on May 14, 2020, Judge Reiss denied the defendants’ request to postpone the jury trial due to COVID-19 concerns, ruling that a jury of six jurors and one alternate would comport with the court’s social distancing guidelines. The parties will commence jury selection on July 1, 2020. The case is Sitts et al. v. Dairy Farmers of America, Inc. et al., Case No. 2:16-cv-00287 (U.S. Dist. Vt.). Turkey: Class Lawsuits Filed Against Producers. Plaintiffs filed a putative class action suit on behalf of direct purchasers of turkey from 11 turkey producers in December 2019. The plaintiffs allege that, since at least 2010, turkey producers conspired to reduce the supply of turkey in the United States in order to increase prices. The plaintiffs alleged that the turkey producers fixed the supply of turkey by exchanging production information through the wellknown (and much-maligned) statistical service, Agri Stats. The defendants have not yet answered the suit or filed motions to dismiss because those deadlines have been extended by a General Order in the court extending such deadlines in light of the COVID-19 crisis. On April 13, 2020, a putative class of commercial indirect purchasers also filed suit. An agreed motion to consolidate the direct and indirect purchaser suits remains pending. This case is pending in the same Illinois federal district court as a similar antitrust case pending against chicken producers that has been on-going for three years, and a contested motion to transfer the cases to the judge handling the chicken case remains pending. The direct purchaser case is Olean Wholesale Grocery Cooperative et al. v. Agri Stats Inc. et al., Case No. 1:19-cv- 08318 (U.S. Dist. N. Ill.). The indirect purchaser case is Sandee’s Catering v. Agri Stats, Inc., et al., Case No. 20-cv-02295 (U.S. Dist. N. Ill.). Eggs: Another Jury Trial Victory for Producers and Appeals. The egg industry chalked up another victory in the 12-year antitrust litigation that was pending in the Eastern District of Pennsylvania, alleging industry-wide supply manipulation through development and implementation of the industrystandard animal welfare guidelines, among other things. We previously reported on the jury trial victory achieved by three producer-defendants in the class action case in Spring 2018. In Fall 2019, one producer-defendant from the class trial and two egg cooperatives successfully defended another jury trial covering the same allegations. This time, the plaintiffs were most of the nation’s largest grocers, who opted-out of the class. After nearly a six-week trial, the jury returned a verdict in less than two days of deliberation, finding that there was no conspiracy afoot. Meanwhile, the class had appealed their trial loss to the Third Circuit Court of Appeals. One of producerdefendants also filed a cross-appeal. Briefs have been filed and oral argument was conducted via teleconference due to the COVID-19 crisis. The parties are awaiting the Third Circuit’s opinion. Likewise, the opt-outs are appealing their loss to the Third Circuit, and the parties are presently briefing their appeal and the producer-defendant’s crossappeal. In both appeals, the producer-defendant asserts that even though the court ruled the cooperatives involved did not meet the rigors of the Capper-Volstead Act, the producer-defendant’s involvement in the cooperative and the cooperative’s activities are nevertheless exempt from the antitrust laws because the producer-defendant had a good-faith belief the cooperatives qualified for the Act’s exemption. In the interest of full disclosure, Porter Wright Morris & Arthur, LLP represented the producer-defendant that was a defendant at both trials and in both appeals before the Third Circuit. At the trial level, this case was In re Processed Egg Products Litigation, Case No. 2:08-md-02002 (E.D. Pa.). In the interest of full disclosure, Porter Wright Morris & Arthur LLP represented the producer-defendant that was a defendant at both trials and in both appeals before the Third Circuit. Allen Carter is a senior associate and focuses his practice complex litigation. He can be reached at 614.227.4441 or [email protected] PAGE 21