In re Pork Antitrust Litig.

665 F.Supp.3d 967

IN RE PORK ANTITRUST LITIGATION

This Document Relates To: All Class Actions.

Civil No. 18-1776 (JRT/JFD)

MDL No. 21-2998

United States District Court, D. Minnesota

Signed March 29, 2023

MEMORANDUM OPINION AND ORDER GRANTING CLASS PLAINTIFFS' MOTIONS FOR CLASS CERTIFICATION AND DENYING DEFENDANTS' MOTIONS TO EXCLUDE EXPERT TESTIMONY

JOHN R. TUNHEIM, United States District Judge

In this multidistrict litigation alleging price-fixing in the pork industry, three groups of pork purchasers seek class certification: (1) Direct Purchaser Plaintiffs ("DPPs"); (2) Commercial and Institutional Indirect Purchaser Plaintiffs ("Commercial IIPPs" or "CIIPPs"); and Consumer Indirect Purchaser Plaintiffs ("Consumer IPPs" or "CIPPs") (together, "Class Plaintiffs"). Each class submitted expert testimony in support of its motion for class certification. Defendants oppose the Class Plaintiffs' motions and urge the Court to exclude the experts' testimony.

Because the Court finds the less stringent Daubert standard employed at the class certification stage satisfied, it will deny the Defendants' motions to exclude the experts' testimony. After conducting a rigorous analysis, the Court also finds that the Class Plaintiffs have satisfied their burden under Federal Rule of Civil Procedure 23 for class certification. The Court will therefore certify the DPPs' damages class, the Consumer IPPs' damages class, and the Commercial IIPPs' damages and injunctive relief classes.

BACKGROUND

I. FACTS

This case represents the consolidation of many separately filed actions alleging that Defendants,¹ among America's largest pork producers and integrators, conspired to limit the supply of pork and thereby fix prices in violation of federal and state antitrust laws. Together, Defendants control over 80 percent of the wholesale pork market. (3rd Am. DPP Compl. ("DPP Compl.") ¶ 1, Jan. 15, 2020, Docket No. 431.) Plaintiffs allege that, from at least 2009-2018, Defendants conspired to "fix, raise, maintain, and stabilize the price of pork." (Id. ¶ 2.) Plaintiffs allege that this was accomplished principally "by coordinating output and limiting production with the intent and expected result of increasing pork prices in the United States." (Id.) This price-raising and fixing allegedly caused Class Plaintiffs to pay artificially inflated pork prices. (Id. ¶ 7.)

There are three categories of Class Plaintiffs who purchased, either directly or indirectly, pork products from Defendants: Direct Purchaser Plaintiffs ("DPPs"), Consumer Indirect Purchaser Plaintiffs ("Consumer IPPs"), and Commercial and Institutional Indirect Purchaser Plaintiffs ("Commercial IIPs"). All three allege that Defendants engaged in a price-fixing conspiracy to artificially constrict the supply of pork products in the United States, a per se violation of the Sherman Act. Consumer IPPs also bring a rule of reason theory against Defendants.

II. PROCEDURAL HISTORY

Named Plaintiffs initiated this action in 2018. (Compl., June 28, 2018, Docket No. 1.) The Court first considered a joint motion to dismiss brought by Defendants against the three class complaints in 2019. The Court concluded that Plaintiffs had not adequately alleged parallel conduct, an essential element in showing that Defendants engaged in an agreement to limit the supply of pork, and granted the motion to dismiss without prejudice. In re Pork Antitrust Cases, No. 18-1776, 2019 WL 3752497, at *9-10 (D. Minn. Aug. 8, 2019).

Plaintiffs then filed amended complaints, which Defendants again moved to dismiss. The Court largely denied the motion to dismiss because Plaintiffs' amended complaints adequately pled parallel conduct and the claims were not time-barred. In re Pork Antitrust Litigation, 495 F. Supp. 3d 753, 764 (D. Minn. 2020). Since then, this multidistrict litigation has grown exponentially as many Direct Action Plaintiffs ("DAPs") joined the litigation.²

III. CLASS CLAIMS

Class Plaintiffs all moved for class certification on May 2, 2022.³ Defendants oppose all three class certification motions.⁴

A. Direct Purchaser Plaintiffs

The proposed DPP class broadly represents individuals and businesses that are the first in the chain of distribution, purchasing directly from Defendants. DPPs bring claims under federal law and ask the Court to certify the following damages class pursuant to Rule 23(b)(3):

All persons and entities who directly purchased one or more of the following types of pork, or products derived from the following types of pork, from Defendants, or their respective subsidiaries or affiliates, for use or delivery in the United States from June 29, 2014 through June 30, 2018: fresh or frozen loins, shoulders, ribs, bellies, bacon, or hams. For this lawsuit, pork excludes any product that is marketed as organic or as no antibiotics ever (NAE); any product that is fully cooked or breaded; any product other than bacon that is marinated, flavored, cured, or smoked; and ready-to-eat bacon.⁵

(DPPs' Mem. Supp. Mot. Certify Class at 41, May 2, 2022, Docket No. 1320.) DPPs propose the following named Plaintiffs serve as class representatives: Maplevale Farms, Inc.; John Gross and Company, Inc.; Ferraro Foods, Inc. and Ferraro Foods of North Carolina, LLC; and Olean Wholesale Grocery Cooperative, Inc. (Id. at 9.) All named DPPs assert claims arising from Defendants' alleged conspiracy to raise pork prices and share the same interest in establishing Defendants' liability and maximizing classwide damages. Likewise, they and their counsel have actively participated in the litigation. (E.g., Decl. Bobby Pouya, Ex. 3, ¶ 6, May 2, 2022, Docket No. 1322-4.) DPPs also ask the Court to appoint its interim co-lead counsel, Lockridge Grindal Nauen P.L.L.P. and Pearson & Warshaw, LLP,⁶ as class counsel. (See DPPs' Mot. Certify Class at 1.)

B. Commercial and Institutional Indirect Purchaser Plaintiffs

The Commercial IIPP class broadly represents indirect purchasers who are not end users of pork products. Commercial IIPPs bring claims under state laws and ask the Court to certify the following injunctive relief class pursuant to Rule 23(b)(2) and damages class pursuant to Rule 23(b)(3):

Proposed Injunctive Class: All entities that indirectly purchased uncooked pork bacon, or one or more of the following types of raw pork, whether fresh or frozen: loins, shoulder, ribs, hams, or pork chops from defendants or co-conspirators for their own use in commercial food preparation in the United States from June 28, 2014 to June 30, 2018. For this lawsuit, pork excludes any product that is marketed as organic and/or no antibiotics ever and any product other than bacon that is marinated, seasoned, flavored, or breaded, but it includes uncooked and cooked ham water added products.⁷

Proposed Damages Class: All entities that indirectly purchased uncooked pork bacon, or one or more of the following types of raw pork, whether fresh or frozen: loins, shoulder, ribs, hams, or pork chops from defendants or co-conspirators for their own use in commercial food preparation in the Repealer Jurisdictions⁸ from June 28, 2014 to June 30, 2018. For this lawsuit, pork excludes any product that is marketed as organic and/or no antibiotics ever and any product other than bacon that is marinated, seasoned, flavored, or breaded, but it includes uncooked and cooked ham water added products.

(Commercial IIPPs' Mot. Certify Class at 2-3.) Commercial IIPPs propose the following class representatives: Sandee's Bakery; Francis T. Enterprises d/b/a Erbert & Gerbert's; Joe Lopez, d/b/a Joe's Steak and Leaf; Longhorn's Steakhouse; The Grady Corporation; Mcmjoynt LLC d/b/a The Breakfast Joynt; Edley's Restaurant Group, LLC; Basil Mt. Pleasant, LLC, Basil Charlotte, Inc.; Farah's Courtyard Deli, Inc.; Tri-Ten LLC. (Id. at 1 n.1.) Commercial IIPPs also ask the Court to appoint existing interim co-lead counsel, Cuneo Gilbert & LaDuca, LLP and Larson King, LLP, to serve as class counsel.⁹ (Id. at 1.)

C. Consumer Indirect Purchaser Plaintiffs

Lastly, the Consumer IPPs represent end-users of pork products. They are largely individual consumers who purchased pork at allegedly elevated prices indirectly from Defendants. Consumer IPPs bring per se and rule of reason theories against Defendants under various state laws and ask the Court to certify the following damages class pursuant to Rule 23(b)(3):

All persons and entities who indirectly purchased raw pork, bacon, or one or more of the following types of raw pork, whether fresh or frozen: bellies, loins, shoulder, ribs or pork chops from defendants or co-conspirators for personal consumption in the Repealer Jurisdictions¹⁰ from June 28, 2014 to June 30, 2018. For this lawsuit, pork excludes any product that is marketed as organic, no-antibiotics ever (NAE) and any product other than bacon that is marinated, seasoned, flavored, or breaded.¹¹

(Consumer IPPs' Mot. Certify Class at 2.) Consumer IPPs identified the following individuals to serve as class representatives: Michael Anderson, Sandra Steffen, Michael Pickett, David Look, Joseph Realdine, Ryan Kutil, Kory Bird, Duncan Birch, Robert Eccles, Jennifer Sullivan, Kenneth King, Sarah Isola, Wanda Duryea, Edwin Blakey, Michael Reilly, Jeffrey Allison, Kenneth Neal, Chad Nodland, Chris Deery, Laura Wheeler, Christina Hall, Donya Collins, Thomas Cosgrove, Charles "Rich" Dye, Eric Schaub, Kate Smith, Stacey Troupe, James Eaton, and Isabelle Bell. (Consumer IPPs' Mem. Supp. Mot. Certify Class at 10, May 2, 2022, Docket No. 1343.) Consumer IPPs ask the Court to appoint their existing interim co-lead class counsel, Hagens Berman Sobol Shapiro LLP and Gustafson Gluek PLLC, as co-lead class counsel. (Id. at 61.)

IV. MOTIONS TO EXCLUDE

The Class Plaintiffs each submitted expert testimony in support of their motions for class certification. The Consumer IPPs offer Dr. Hal Singer's testimony, the DPPs offer Dr. Russell Mangum's testimony, and the Commercial IIPPs offer Dr....