Monthly Archives: July 2012

In re Wholesale Grocery Products Antitrust Litigation: class certification denied 7/26/2012

On July 26, 2012, the federal district court in Minnesota released a memorandum opinion and order denying the plaintiffs’ motion for class certification and denying the defendants’ Daubert motion in the Wholesale Grocery Products Antitrust Litigation.  The opinion and order is available on the district court’s website at http://www.mnd.uscourts.gov/MDL-Wholesale/orders.shtml

As stated in the district court’s opinion: “Plaintiffs are retail grocers who allege Defendants SuperValu[, Inc.] and C&S [Wholesale Grocers, Inc.], two of the largest grocery product wholesalers (measured by sales volume) in the United States, conspired by way of an Asset Exchange Agreement (the ‘AEA’) to allocate territory and customers.  *   *   *   *  Through the AEA, C&S acquired all of SuperValu’s distribution centers, and the clients they served, in New England, and SuperValu acquired all of C&S’s distribution centers, and the clients they served, in the Midwest. . . .  The AEA included a non-compete provision wherein each Defendant agreed not to supply former customers served from a distribution center exchanged in the agreement for two years, and each Defendant agreed not to solicit those customers for a period of five years. . . .  Within eight months of the closing of the AEA, all the exchanged distribution centers were closed. . . .  Plaintiffs allege the purpose of the AEA was to allocate customers and territory in violation of federal antitrust laws. . . .  Plaintiffs aver the elimination of competition between SuperValu and C&S in regional markets allowed each to charge supracompetitive prices to retail customers.”  (Memo. Op. and Order, 7/26/12, at 2, 4-5.)

The district court denied class certification, finding that the plaintiffs had failed to establish that common issues predominate with respect to the impact of the alleged violations on the putative members of either of the two proposed classes, the New England Class and the Midwest Class.  (Memo. Op. and Order, 7/26/12, at 16.)

Advertisements

Trial Brief in Adams v. Pilgrim’s Pride Corp.

On July 16, 2012, defendant Pilgrim’s Pride Corp. argued in its trial brief in Adams v. Pilgrim’s Pride Corp. (E.D. Tex.), that Louisiana chicken growers have no standing to sue Pilgrim’s Pride for alleged antitrust violations under Louisiana’s Unfair Trade Practices and Consumer Protection Law (LUTPA).  The LUTPA claims in the Adams case are asserted by former chicken growers for Pilgrim’s Pride’s former Farmerville, Louisiana plant.  They claim that Pilgrim’s Pride idled the plant for the purpose of raising the price of chicken produced by Pilgrim’s Pride at other plants, allegedly in violation of Section 192(e) of the Packers and Stockyards Act and the LUTPA.

In its trial brief, Pilgrim’s Pride argues that the LUTPA claims are not viable, since under Fifth Circuit authority only direct consumers or business competitors have standing to assert LUTPA claims, and the Farmerville contract growers were neither consumers nor competitors, but suppliers of services.  The brief acknowledges that in Cheramie Services, Inc. v. Shell Deepwater Prod., Inc., 35 So. 3d 1053 (La. 2010), three of seven justices of the Louisiana Supreme Court concluded that the LUTPA does not clearly limit private rights of action to consumers or business competitors.  Pilgrim’s Pride argues, however, that since this was not the holding of a majority of the Court, it is not binding on lower courts under Louisiana law, and thus does not abrogate the referenced Fifth Circuit interpretation of the LUTPA.