The opinion of the court was delivered by: Hon. Jeffrey S. White United States District Judge
STEVE W. BERMAN (admitted pro hac vice) GEORGE W. SAMPSON (admitted pro hac vice) HAGENS BERMAN SOBOL SHAPIRO LLP 1918 8th Avenue, Suite 3300 Seattle, WA 98101 Telephone: (206) 623-7292 Facsimile: (206) 623-0594 Email: email@example.com Email: firstname.lastname@example.org -and-ELAINE T. BYSZEWSKI (SBN 222304) HAGENS BERMAN SOBOL SHAPIRO LLP 301 North Lake Avenue, Suite 203 Pasadena, California 91101 Telephone: (213) 330-7150 Facsimile: (213) 330-7152 Email: email@example.com [Additional Counsel Listed on Signature Page] Counsel for the Proposed Class
REVISED JOINT CASE MANAGEMENT STATEMENT; STIPULATION AND [PROPOSED] SCHEDULING ORDER
Judge: Hon. Jeffrey S. White
Date: February 8, 2013
Time: 1:30 p.m. 23
Courtroom: 11, 19th Floor 24
Dairylea Cooperative Inc.; and Agri-Mark, Inc., (collectively, the "Parties") jointly submit the 4 following revised case management statement. 5 Pursuant to Civil Local Rule 16-9, Plaintiffs and Defendants National Milk Producers Federation, Cooperatives Working Together; Dairy Farmers of America, Inc.; Land O'Lakes, Inc.; 3
1.JURISDICTION AND SERVICE
a.Subject Matter Jurisdiction
Pursuant to the Court's Order Regarding Motion to Dismiss Consolidated Amended Complaint Dkt. No. 123 ("Order"), dated October 30, 2012, the Court has jurisdiction over 10 Secretary of the U.S. Department of Agriculture. The Court denied Defendants' motion to dismiss 15 on those grounds. 16
ii. Defendants' Statement
Defendants have asserted and maintain that the Court lacks subject matter jurisdiction over Plaintiffs' claims, as 7 U.S.C. § 292 grants exclusive or primary jurisdiction over such claims to the 14
b.Personal Jurisdiction and Venue
No party contests personal jurisdiction or venue.
Defendants have been served with process and have appeared.
In 2003, Defendant National Milk Producers Federation ("NMPF") founded
Cooperatives Working Together ("CWT"), whose members include
Defendants Dairy Farmers of 24
America, Land O'Lakes, Dairylea, and Agri-Mark, for the sole stated
purpose "to strengthen and 25 stabilize milk prices." From 2003 to
2010, Defendants conspired to limit the production of raw 26 27
farm milk through ten rounds of premature "herd retirements" in order
to increase the price of raw 2 farm milk and drive smaller dairy
farmers out of business.*fn2 CWT used nearly all of
the revenue 3 created by the mandatory assessments of its members to
pay farmers to prematurely slaughter their 4 entire dairy
herds.*fn3 For example, in 2009, CWT member
assessments generated $219 million in 5 revenues for CWT, which spent
$217 million on herd reductions.*fn4 By 2010 CWT had
eliminated 6 over 2,800 dairy farms from the market.*fn5
The herd retirement program was a huge success for 7
Defendants, who were responsible for removing over 500,000 cows from
production, reducing the 8 nation's milk supply by approximately 10
billion pounds, increasing cumulative milk revenues by 9
$9.55 billion, and thereby increasing the price of milk for
consumers.*fn6 Plaintiffs are indirect 10 purchasers
who seek to recover excess monies paid for milk and other fresh milk
Defendants deny many of the factual allegations in the Complaint regarding the purpose, 13 operation, and effect of CWT and the herd retirement program. Defendants maintain that, in any 14 event, the conduct attributed to them in the Complaint is exempt from liability under the Capper-15 Volstead Act, 7 U.S.C. §§ 291-292, Section 6 of the Clayton Act, 15 U.S.C. § 17, and also state 16 law. Defendants also assert that (a) the filed rate doctrine bars Plaintiffs' claims for damages, 17 which assertion the Court rejected at the motion to dismiss stage, and (b) the doctrine of laches 18 applies to bar Plaintiffs' claims. 19 20
Plaintiffs believe the primary legal issues are as follows:
resolved by this Court. First, this Court determined that the U.S. Department of Agriculture does 17 not have exclusive or primary jurisdiction over this action.*fn7 Second, this Court determined that 18 the filed-rate doctrine does not bar Plaintiffs' damage claims.*fn8
Defendants suggest that the legal issues include, but are not limited to:
i. Whether Plaintiffs' state antitrust, unfair competition, and unjust enrichment claims are barred by state statutory exemptions and immunities for agricultural cooperatives;
i. Capper-Volstead's § 1 antitrust exemption lists "processing, preparing for market, handling, and marketing" but omits producing. Are Defendants' concerted production restraints exempt from antitrust scrutiny under Capper- Volstead?
ii. If Defendants' production restraints are not exempt under Capper-Volstead, are Defendants per se liable for conspiring to raise, stabilize, fix, and/or maintain prices of farm milk sold in the U.S. by restricting farm milk production through herd retirements?
iii. If so, are Defendants therefore in violation of state antitrust and/or unfair and deceptive trade practices statutes, as well as the common law of unjust enrichment in multiple states?
iv. Is this case appropriate for class certification under Federal Rule of Civil Procedure 23?
Plaintiffs note that two of the legal issues listed by Defendants below have already been
ii. Whether the Capper-Volstead Act, 7 U.S.C. §§ 291-292, and the Clayton Act, 15 U.S.C. § 17, bar Plaintiffs' claims;
iii. Whether any class of indirect purchasers may be certified under Federal Rule of Civil Procedure 23;
iv. Whether Plaintiffs' damage claims are barred by the filed-rate doctrine; v. Whether the Secretary of the U.S. Department of Agriculture has exclusive or primary jurisdiction over this action;
vi. Whether Defendants' alleged conduct violated any of the asserted state antitrust statutes or unfair and deceptive trade practices statutes, or the common law of unjust enrichment;
vii. Whether Plaintiffs can prove that Defendants caused their alleged injuries and, if so, the existence and extent of any resulting damages; and
viii. Whether Plaintiffs' claims are time-barred in whole or in part.
Defendants filed a Motion to Dismiss Plaintiffs' First Amended Complaint on December 22, 2011. In its July 19, 2012 Order, the Court granted Plaintiffs leave to amend their pleading "to 16 clarify the facts underlying their theory of predatory conduct." See Order (July 19, 2012 (Dkt. No. 17 105), at 2. Plaintiffs filed a Consolidated Amended Class Action Complaint on August 20, 2012, 18 and Defendants filed another motion to dismiss. In its October 30, 2012 Order, the Court denied 19
Defendants' motion to dismiss without addressing whether Plaintiffs had sufficiently pled 20 predatory conduct. See Order (Oct. 30, 2012) (Dkt. No. 123). In addition to Defendants' motions 21 to dismiss, there have been various administrative motions. 22
24 judgment on the ground that Defendants' production restraints are not exempt from antitrust 25 liability under the Capper-Volstead Act. 26 27 28
Plaintiffs intend to file a motion for class certification and a motion for partial summary
3 summary judgment. As explained below, Defendants believe that there are certain potentially 4 dispositive matters that the Court should consider before class certification, and they intend to seek 5 leave to file a motion for partial summary judgment on those matters shortly. In addition, 6
Defendants expect to oppose Plaintiffs' planned motions for class certification and partial
Defendants recently submitted a motion to transfer to this Court an action brought by a purported 7 direct purchaser, Brenda Blakeman v. National Milk Producers Federation et al., Case No. 3:12-8 cv-01246-GPM-PMF (S.D. Ill.), which was filed on December 7, 2012 in the U.S. District ...