Edwards et al v. National Milk Producers Federation et al

Filing 145

ORDER GRANTING AS MODIFIED 141 STIPULATION RE: SCHEDULING ORDER. Case Management Statement due by 12/6/2013. Further Case Management Conference set for 12/13/2013 01:30 PM. Motion For Class Certification due to be filed by 9/15/2013. Response s due by 10/11/2013. Replies due by 10/25/2013. Hearing on Motion For Class Certification set for 11/15/2013 09:00 AM in Courtroom 11, 19th Floor, San Francisco before Hon. Jeffrey S. White. Signed by Judge JEFFREY S. WHITE on 2/13/13. (jjoS, COURT STAFF) (Filed on 2/13/2013)

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Case3:11-cv-04766-JSW Document141 Filed02/12/13 Page1 of 21 1 2 3 4 5 6 7 8 9 10 11 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: steve@hbsslaw.com Email: george@hbsslaw.com -andELAINE 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: elaine@hbsslaw.com [Additional Counsel Listed on Signature Page] Counsel for the Proposed Class 12 UNITED STATES DISTRICT COURT 13 NORTHERN DISTRICT OF CALIFORNIA 14 SAN FRANCISCO DIVISION 15 16 MATTHEW EDWARDS, et al., individually and on behalf of all others similarly situated, 17 Plaintiffs, Case No. 3:11-CV-04766-JSW [consolidated with 11-CV-04791-JSW and 11-CV-05253-JSW] 18 v. 19 20 21 22 23 24 NATIONAL MILK PRODUCERS FEDERATION, aka COOPERATIVES WORKING TOGETHER; DAIRY FARMERS OF AMERICA, INC.; LAND O’LAKES, INC.; DAIRYLEA COOPERATIVE INC.; and AGRIMARK, INC., REVISED JOINT CASE MANAGEMENT STATEMENT; STIPULATION AND [PROPOSED] SCHEDULING ORDER Judge: Hon. Jeffrey S. White Date: February 8, 2013 Time: 1:30 p.m. Courtroom: 11, 19th Floor Defendants. 25 26 27 28 REVISED JOINT CASE MANAGEMENT STATEMENT; STIPULATION AND [PROPOSED] SCHEDULING ORDER 2111319.2 Case3:11-cv-04766-JSW Document141 Filed02/12/13 Page2 of 21 1 Pursuant to Civil Local Rule 16-9, Plaintiffs and Defendants National Milk Producers 2 Federation, Cooperatives Working Together; Dairy Farmers of America, Inc.; Land O’Lakes, Inc.; 3 Dairylea Cooperative Inc.; and Agri-Mark, Inc., (collectively, the “Parties”) jointly submit the 4 following revised case management statement. 5 1. 6 JURISDICTION AND SERVICE a. 7 Subject Matter Jurisdiction i. Plaintiffs’ Statement 8 Pursuant to the Court’s Order Regarding Motion to Dismiss Consolidated Amended 9 Complaint Dkt. No. 123 (“Order”), dated October 30, 2012, the Court has jurisdiction over 10 Plaintiffs’ claims.1 11 ii. 12 Defendants’ Statement Defendants have asserted and maintain that the Court lacks subject matter jurisdiction over 13 Plaintiffs’ claims, as 7 U.S.C. § 292 grants exclusive or primary jurisdiction over such claims to the 14 Secretary of the U.S. Department of Agriculture. The Court denied Defendants’ motion to dismiss 15 on those grounds. 16 b. 17 Personal Jurisdiction and Venue No party contests personal jurisdiction or venue. 18 c. Service 19 Defendants have been served with process and have appeared. 20 21 2. FACTS a. Plaintiffs’ Statement 22 In 2003, Defendant National Milk Producers Federation (“NMPF”) founded Defendant 23 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 28 1 Order at 5 (“the Court finds that it has jurisdiction to consider Plaintiffs’ antitrust claims”). -1- REVISED JOINT CASE MANAGEMENT STATEMENT; STIPULATION AND [PROPOSED] SCHEDULING ORDER 2111319.2 Case3:11-cv-04766-JSW Document141 Filed02/12/13 Page3 of 21 1 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.2 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.3 For example, in 2009, CWT member assessments generated $219 million in 5 revenues for CWT, which spent $217 million on herd reductions.4 By 2010 CWT had eliminated 6 over 2,800 dairy farms from the market.5 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.6 Plaintiffs are indirect 10 purchasers who seek to recover excess monies paid for milk and other fresh milk products. 11 b. Defendants’ Statement 12 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 Capper15 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 3. 21 LEGAL ISSUES a. Plaintiffs’ Statement 22 Plaintiffs believe the primary legal issues are as follows: 23 24 25 26 27 28 2 ¶¶ 1-2, 62-108. ¶¶ 7, 11. 4 Id. 5 ¶ 109. 6 ¶¶ 14, 109, 112-124. 3 -2REVISED JOINT CASE MANAGEMENT STATEMENT; STIPULATION AND [PROPOSED] SCHEDULING ORDER 2111319.2 Case3:11-cv-04766-JSW Document141 Filed02/12/13 Page4 of 21 1 i. Capper-Volstead’s § 1 antitrust exemption lists “processing, preparing for 2 market, handling, and marketing” but omits producing. Are Defendants’ 3 concerted production restraints exempt from antitrust scrutiny under Capper- 4 Volstead? 5 ii. If Defendants’ production restraints are not exempt under Capper-Volstead, are 6 Defendants per se liable for conspiring to raise, stabilize, fix, and/or maintain 7 prices of farm milk sold in the U.S. by restricting farm milk production through 8 herd retirements? 9 iii. If so, are Defendants therefore in violation of state antitrust and/or unfair and 10 deceptive trade practices statutes, as well as the common law of unjust 11 enrichment in multiple states? 12 iv. 13 Is this case appropriate for class certification under Federal Rule of Civil Procedure 23? 14 15 Plaintiffs note that two of the legal issues listed by Defendants below have already been 16 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.7 Second, this Court determined that 18 the filed-rate doctrine does not bar Plaintiffs’ damage claims.8 b. 19 Defendants’ Statement Defendants suggest that the legal issues include, but are not limited to: 20 i. 21 Whether Plaintiffs’ state antitrust, unfair competition, and unjust enrichment 22 claims are barred by state statutory exemptions and immunities for agricultural 23 cooperatives; 24 25 7 26 27 28 See Order at 3-6 (“The Supreme Court has already determined that the Secretary does not have primary or exclusive jurisdiction.”). 8 See Order at 7-10 (“Therefore, the Court denies Defendants’ motion to dismiss based on the filed-rate doctrine.”). -3REVISED JOINT CASE MANAGEMENT STATEMENT; STIPULATION AND [PROPOSED] SCHEDULING ORDER 2111319.2 Case3:11-cv-04766-JSW Document141 Filed02/12/13 Page5 of 21 ii. 1 Whether the Capper-Volstead Act, 7 U.S.C. §§ 291-292, and the Clayton Act, 15 U.S.C. § 17, bar Plaintiffs’ claims; 2 iii. 3 Whether any class of indirect purchasers may be certified under Federal Rule of Civil Procedure 23; 4 iv. 6 Whether Plaintiffs’ damage claims are barred by the filed-rate doctrine; v. 5 Whether the Secretary of the U.S. Department of Agriculture has exclusive or primary jurisdiction over this action; 7 vi. 8 Whether Defendants’ alleged conduct violated any of the asserted state antitrust statutes or unfair and deceptive trade practices statutes, or the common law of 9 unjust enrichment; 10 vii. 11 so, the existence and extent of any resulting damages; and 12 13 14 Whether Plaintiffs can prove that Defendants caused their alleged injuries and, if viii. 4. Whether Plaintiffs’ claims are time-barred in whole or in part. MOTIONS Defendants filed a Motion to Dismiss Plaintiffs’ First Amended Complaint on December 15 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 23 a. Plaintiffs’ Statement Plaintiffs intend to file a motion for class certification and a motion for partial summary 24 judgment on the ground that Defendants’ production restraints are not exempt from antitrust 25 liability under the Capper-Volstead Act. 26 27 28 -4REVISED JOINT CASE MANAGEMENT STATEMENT; STIPULATION AND [PROPOSED] SCHEDULING ORDER 2111319.2 Case3:11-cv-04766-JSW Document141 Filed02/12/13 Page6 of 21 b. 1 Defendants’ Statement Defendants expect to oppose Plaintiffs’ planned motions for class certification and partial 2 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 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 Court 9 for the Southern District of Illinois, see Paragraph 10, infra. 10 11 12 5. AMENDMENT OF PLEADINGS a. Plaintiffs’ Statement Plaintiffs do not anticipate filing an amended pleading at this time but may seek leave to do 13 so in the future based on facts learned in discovery or to conform the operative complaint to their 14 motion for class certification or any order from the Court granting same. 15 16 17 18 b. Defendants’ Statement Plaintiffs commenced this action on September 26, 2011. On October 28, 2011, Plaintiffs filed a First Amended Class Action Complaint. In an Order dated July 19, 2012, the Court granted Plaintiffs leave to amend and set an August 10, 2012 deadline for plaintiffs “to clarify the facts 19 underlying their theory of predatory conduct.” See Order (July 19, 2012) (Dkt. No. 105), at 2. 20 21 Plaintiffs filed a Consolidated Amended Class Action Complaint on August 20, 2012. In an Order 22 dated October 30, 2012, the Court noted that Plaintiffs had not pled facts in support of a theory of 23 fraudulent concealment, and set a deadline of November 15, 2012 for Plaintiffs to amend their 24 pleading to include such facts. See Order (Oct. 30, 2012) (Dkt. No. 123), at 10 n.6. Plaintiffs did 25 not further amend the complaint by that date. Plaintiffs must seek leave under Federal Rule of 26 Civil Procedure 15(a)(2) before any further amendments may be made. 27 28 -5REVISED JOINT CASE MANAGEMENT STATEMENT; STIPULATION AND [PROPOSED] SCHEDULING ORDER 2111319.2 Case3:11-cv-04766-JSW Document141 Filed02/12/13 Page7 of 21 1 6. EVIDENCE PRESERVATION The Parties certify that they have reviewed the Guidelines Relating to the Discovery of 2 3 Electronically Stored Information (“ESI Guidelines”), and that they have met and conferred 4 pursuant to Federal Rule of Civil Procedure 26(f) regarding reasonable and proportionate steps 5 taken to preserve evidence relevant to the issues reasonably evident in this action. The parties have 6 come to agreement on a stipulation and proposed preservation order, which they concurrently file 7 with the Court for approval. 8 7. The Parties are making their initial disclosures on February 1, 2013, in accordance with the 9 10 11 DISCLOSURES agreed upon schedule further described in Section 17 below. 8. DISCOVERY 12 The parties anticipate written discovery (including document requests, interrogatories, and 13 requests for admission) as well as deposition discovery. The Parties also anticipate that it will be 14 necessary to engage in some third-party discovery. Plaintiffs have recently served document 15 requests and requests for admissions. 16 17 Discovery Plan a. Initial Disclosures (Fed. R. Civ. Proc. 26(f)(3)(A)) The Parties made their initial disclosures on February 1, 2013, in accordance with the 18 agreed upon schedule further described in Section 17 below. 19 b. Subjects, Schedule, and Phasing of Discovery (Fed. R. Civ. Proc. 26(f)(3)(B)) 20 Plaintiffs believe discovery is needed on numerous subjects, including but not limited to the 21 following: the creation and purpose of CWT; its membership; annual assessments collected by 22 CWT and the annuals payments made relating to herd retirements; the effect of CWT’s programs 23 on the supply of milk; the effect of CWT’s programs on the number of milk farms; the effect of 24 CWT’s programs on milk prices; communications between CWT and its members regarding the 25 price of milk; CWT’s policies of requiring any farmer participating in the herd retirement program 26 to retire all cows wherever located and to withdraw entirely from dairy farming for at least one 27 28 -6REVISED JOINT CASE MANAGEMENT STATEMENT; STIPULATION AND [PROPOSED] SCHEDULING ORDER 2111319.2 Case3:11-cv-04766-JSW Document141 Filed02/12/13 Page8 of 21 1 year; and any attempts to impede the ability of a farmer who had participated in the herd retirement 2 program from producing and/or selling milk again. Defendants believe discovery is needed on, 3 among other subjects, each of the factors relating to class certification under Rule 23, plaintiff’s 4 alleged status and activities as “indirect purchasers,” the relationship, if any, between plaintiffs and 5 any absent putative class members, and each of the defendants, and whether plaintiffs sustained 6 any antitrust injury or other damage. 7 Discovery has commenced and will proceed in accordance with the parties’ stipulated 8 schedule (below). The parties agree that document discovery necessary for the class certification 9 motion should be concluded by August 1, 2013. 10 Defendants also respectfully suggest that the Court coordinate discovery in this case with 11 proceedings in the purported direct purchaser action Brenda Blakeman v. National Milk Producers 12 Federation et al., Case No. 3:12-cv-01246-GPM-PMF (S.D. Ill.), an action that Defendants have 13 moved to transfer to this Court from the U.S. District Court for the Southern District of Illinois, see 14 Paragraph 10, infra. c. Electronically Stored Information (Fed. R. Civ. Proc. 26(f)(3)(C)) 15 Consistent with the Court’s model order, the Parties have been negotiating the terms of 16 17 proposed orders to govern the preservation and discovery of electronically stored information 18 (“ESI”). The parties have come to agreement on a stipulation and proposed preservation order and 19 a stipulation and proposed ESI protocol, which they concurrently file with the Court for approval. 20 The parties agree to meet and confer regarding non-custodial ESI systems and the terms of a search 21 term protocol by February 28, 2013.9 22 23 24 25 26 27 28 9 Defendants have defined custodial file as follows: A document or electronic file within the administrative control of a particular person. For example, the data custodian of an email is the owner of the mailbox which contains the message, and the custodian of a document is the person who either maintains administrative control of a document within his or her own files, maintains in a regular place a document or electronic file, or, for electronic files, whose name can be searched on the system metadata for such record(s) in a shared or network drive, system, or server. The definition of a custodial file does not include any electronic file stored on a shared or network drive, system, or server that is maintained by, revised by, and/or accessible to multiple persons, with the exception that such a document or electronic file is the custodial file of the person who created and regularly maintains such electronic file if the person’s name can be searched on the system metadata for such record(s). -7REVISED JOINT CASE MANAGEMENT STATEMENT; STIPULATION AND [PROPOSED] SCHEDULING ORDER 2111319.2 Case3:11-cv-04766-JSW Document141 Filed02/12/13 Page9 of 21 d. Depositions 1 The parties agree that Plaintiffs may notice up to 10 depositions for each Defendant, and 2 3 may allocate those among fact witnesses and/or 30(b)(6) witnesses. A 7-hour time limitation will 4 apply to each noticed deposition. Defendants together may jointly notice the deposition of each 5 named plaintiff in this action. These deposition numbers are exclusive of experts and third party 6 depositions. e. Issues About Claims of Privilege (Fed. R. Civ. Proc. 26(f)(3)(D)) 7 There are currently no issues about claims of privilege. 8 f. Modification of the Discovery Rules (Fed. R. Civ. Proc. 26(f)(3)(E)) 9 The Parties do not intend to enlarge the discovery limitations imposed by the Federal Rules 10 11 12 of Civil Procedure at this time but reserve the right to seek to modify these limitations if it becomes necessary. g. Other Orders (Fed. R. Civ. Proc. 26(f)(3)(F)) 13 The Parties have negotiated the terms of a stipulation and proposed order regarding the 14 protection of confidential documents and the treatment of inadvertently produced privileged 15 materials. The parties have come to agreement on a stipulation and proposed protective order, 16 which they concurrently file with the Court for approval. 17 9. 18 19 20 21 22 23 24 CLASS ACTIONS a. Plaintiffs’ Statement Plaintiffs intend to move for certification of 27 state classes, asserting claims under state antitrust statutes and unfair and deceptive trade practices statutes, as well as claims for unjust enrichment. Each state class would be defined as all residents who purchased for their own use and not for resale milk or fresh milk products (including cream, half & half, yogurt, cottage cheese, cream cheese, and sour cream). As more fully set forth in section 17 below, Plaintiffs propose to move for class certification by September 15, 2013. 25 26 27 28 If custodians’ names cannot be searched on the system metadata in certain shared or network drives, systems, or servers, the Parties should identify these and provide additional information regarding the shared or network drives, system, or servers to be searched for ESI on a noncustodial basis. The parties agree to exchange this information by February 28, 2013. -8REVISED JOINT CASE MANAGEMENT STATEMENT; STIPULATION AND [PROPOSED] SCHEDULING ORDER 2111319.2 Case3:11-cv-04766-JSW Document141 Filed02/12/13 Page10 of 21 b. 1 Defendants expect to oppose Plaintiffs’ planned motion for class certification. 2 3 Defendants’ Statement 10. RELATED CASES There are no pending related cases in the U.S. District Court for the Northern District of 4 5 California. A related action was filed on December 7, 2012 in the U.S. District Court for the 6 Southern District of Illinois, Brenda Blakeman v. National Milk Producers Federation et al., Case 7 No. 3:12-cv-01246-GPM-PMF (S.D. Ill.), by a purported direct purchaser of milk products. 8 Defendants recently filed a motion to transfer the Blakeman action to this Court. Two related cases 9 were voluntarily dismissed, Stephen L. LaFrance Holding Inc., et al. v. National Milk Producers 10 Federation, et al., Case No. 2:12-cv-00070 (E.D. Pa.), transferred to the U.S. District Court for the 11 Northern District of California on July 31, 2012, Stephen L. LaFrance Holding Inc., et al. v. 12 National Milk Producers Federation, et al., Case No. 3:12-cv-04142 (N.D. Cal. dismissed Aug. 23, 13 2012), and Mark Petersen, et al. v. National Milk Producers Federation, et al., Case No. 11-cv- 14 03186 (D. Minn. dismissed Oct. 31, 2011). Defendants note that all six of the law firms 15 representing the plaintiff in the recently filed Blakeman action also represented the plaintiffs in 16 Stephen L. LaFrance Holding, Inc. The plaintiffs in Stephen L. LaFrance Holding, Inc. voluntarily 17 dismissed their complaint after the JPML denied their motion for transfer and consolidation in the 18 Eastern District of Pennsylvania and shortly after the action was transferred to this Court. There 19 also are at least two related pending state court actions, one in Missouri, Kristie Tessandori v. 20 Dairy Farmers of America, Inc., Case No. 1216-CV-13257 (Mo. Cir. Ct., Jackson Cnty.), and one 21 in Kansas, Tom Williams v. Dairy Farmers of America, Inc., Case No. 12 CV 98 (Kan. Dist. Ct.). 22 11. RELIEF 23 a. Plaintiffs’ Statement 24 Plaintiffs seek all relief available under the applicable state laws, including but not limited 25 to (a) restitution and/or damages to class members for their purchases of milk and/or fresh milk 26 products at inflated over-order prices; (b) actual damages, statutory damages, punitive or treble 27 damages, and such other relief as provided by statute and common law; (c) pre-judgment and post- 28 -9REVISED JOINT CASE MANAGEMENT STATEMENT; STIPULATION AND [PROPOSED] SCHEDULING ORDER 2111319.2 Case3:11-cv-04766-JSW Document141 Filed02/12/13 Page11 of 21 1 judgment interest on such monetary relief; (d) equitable relief in the form of restitution and/or 2 disgorgement of all unlawful or illegal profits received by Defendants as a result of their unlawful 3 conduct; (e) the costs of bringing this suit, including reasonable attorneys’ fees; and (f) all other 4 relief to which Plaintiffs and class members may be entitled at law or in equity. Plaintiffs’ 5 calculation of damages is in large part dependent on information to be obtained during discovery in 6 this action. Therefore, Plaintiffs have not yet computed damages. 7 b. 8 Defendants deny that Plaintiffs are entitled to any of the relief sought. Given that Plaintiffs 9 have not yet stated how they intend to calculate damages, it is too early for Defendants to describe 10 11 Defendants’ Statement the bases on which they contend damages should be calculated if any liability were to be established. 12. SETTLEMENT AND ADR 12 The Parties have complied with ADR L.R. 3-5. The Parties discussed the possibility of 13 engaging in alternative dispute resolution during the meet and confer process, and preliminarily 14 agree that mediation is preferable to other forms of ADR for this case. The Parties believe that 15 settlement discussions are premature at this time. 16 13. The Parties do not consent to have a magistrate judge conduct all further proceedings. 17 18 19 CONSENT TO MAGISTRATE JUDGE FOR ALL PURPOSES 14. OTHER REFERENCES The Parties agree that this action is not suitable for reference to binding arbitration or a 20 special master. The United States Judicial Panel on Multidistrict Litigation denied a motion filed 21 by plaintiffs in Stephen L. LaFrance Holding, Inc. to centralize this action and all similar actions in 22 a single judicial district for coordinated pretrial proceedings. 23 c. Plaintiffs’ Statement 24 Should additional actions regarding the same subject matter be filed against Defendants, 25 they can file motions to transfer them to this Court, as Defendants have done with respect to the 26 Blakeman action. 27 28 - 10 REVISED JOINT CASE MANAGEMENT STATEMENT; STIPULATION AND [PROPOSED] SCHEDULING ORDER 2111319.2 Case3:11-cv-04766-JSW Document141 Filed02/12/13 Page12 of 21 1 d. 2 Should additional actions regarding the same subject matter be filed against Defendants, 3 however, this action may then be suitable for reference to the Judicial Panel on Multidistrict Litigation. 4 15. Defendants’ Statement NARROWING OF ISSUES 5 a. Plaintiffs’ Statement 6 The Parties have not identified any issues that can be currently narrowed by agreement. 7 Plaintiffs intend to move for class certification as soon as practicable based on Defendants’ 8 anticipated timing for production of documents. Whether Defendants’ production restraints are 9 exempt under the Capper-Volstead Act is a significant threshold issue to resolution of the lawsuit. 10 b. Defendants’ Statement 11 Defendants believe that the case can be narrowed significantly by considering certain 12 discrete legal issues that can be resolved with minimal discovery, including, without limitation, 13 whether some or all of Plaintiffs’ state antitrust, unfair competition, and unjust enrichment claims 14 are barred by state statutory exemptions and immunities for agricultural cooperatives. 15 16. At this time the Parties do not believe that an expedited trial schedule is appropriate. 16 17 18 EXPEDITED SCHEDULE 17. SCHEDULING The parties stipulate to the following case management schedule: Last day for Rule 26(a) Initial Disclosures February 1, 2013 Initial Case Management Conference February 8, 2013 Last day to negotiate preservation order February 12, 2013 Last day to negotiate ESI protocol February 12, 2013 25 Last day to exchange custodian lists (including positions and dates) and information sufficient to identify relevant shared or network drives, systems, or servers in which custodians’ names cannot be searched on the system metadata February 28, 2013 26 Last day to negotiate re a search term protocol 27 Last day to meet and confer re custodians/shared drives 19 20 21 22 23 24 28 February 28, 2013 March 14, 2013 - 11 REVISED JOINT CASE MANAGEMENT STATEMENT; STIPULATION AND [PROPOSED] SCHEDULING ORDER 2111319.2 Case3:11-cv-04766-JSW Document141 Filed02/12/13 Page13 of 21 1 Last day to commence rolling production May 1, 2013 2 Last day to produce documents necessary for class certification August 1, 2013 Last day for motion for class certification September 15, 2013 Last day to file updated Case Status Report December 6, 2013 6 Last day to file Opposition to motion for class certification December 13, 2013 7 Second Case Management Conference December 13, 2013 8 Last day to file Reply in support of motion for class certification February 21, 2014 10 Fact discovery closes February 28, 2014 11 Hearing on motion for class certification April 4, 2014 12 Last day for expert reports on merits TBD 13 Last day for depositions of experts TBD 14 Last day for responsive expert reports TBD 15 Close of expert discovery TBD 16 Last day to file dispositive motions TBD 17 Oppositions to dispositive motions TBD 18 Reply briefs in support of dispositive motions TBD 19 Hearing on dispositive motions TBD 20 Motions in limine TBD 21 Oppositions to motions to limine TBD 22 Joint Proposed Final Pretrial Order TBD 23 Pre-trial Conference TBD 24 Trial TBD 3 4 5 9 25 26 27 28 18. TRIAL a. Plaintiffs’ Statement Plaintiffs have requested a jury trial that they expect to last approximately three weeks. - 12 REVISED JOINT CASE MANAGEMENT STATEMENT; STIPULATION AND [PROPOSED] SCHEDULING ORDER 2111319.2 Case3:11-cv-04766-JSW Document141 Filed02/12/13 Page14 of 21 1 b. 2 Defendants believe it is too early to approximate the length of any trial that should occur. 3 4 5 6 7 8 19. Defendants’ Statement DISCLOSURE OF NON-PARTY INTERESTED ENTITIES OR PERSONS The Parties have each filed a Certification of Interested Entities or Persons as required by Civil Local Rule 3-16. Plaintiffs stated: “Pursuant to Civil L.R. 3-16, the undersigned certifies that as of this date, other than the named parties, there is no such interest to report.” Defendant National Milk Producers Federation stated: “Pursuant to Civil L.R. 3-16, 9 Defendant National Milk Producers Federation a/k/a Cooperatives Working Together, by and 10 11 12 13 through its undersigned counsel, certifies that as of this date, other than named parties, there is no such interest to report.” Defendant Dairy Farmers of America, Inc. stated: “Dairy Farmers of America, Inc. is 14 unaware of any person or entity other than the named parties with a financial or other interest that 15 could be substantially affected by the outcome of the proceeding.” 16 Defendant Land O’Lakes, Inc. stated: “Pursuant to Civil L.R. 3-16, Defendant Land 17 18 19 20 O’Lakes, Inc., by and through its undersigned counsel, certifies that as of this date, other than the named parties, there is no such interest to report.” Defendant Dairylea Cooperative Inc. stated: “Pursuant to Civil L.R. 3-16, Defendant 21 Dairylea Cooperative Inc., by and through its undersigned counsel, certifies that as of this date, 22 other than named parties, there is no such interest to report.” 23 Defendant Agri-Mark, Inc. stated: “Pursuant to Civil L.R. 3-16, Defendant Agri-Mark, 24 Inc., by and through its undersigned counsel, certifies that as of this date, other than the named 25 26 party, there is no such interest to report.” 27 28 - 13 REVISED JOINT CASE MANAGEMENT STATEMENT; STIPULATION AND [PROPOSED] SCHEDULING ORDER 2111319.2 Case3:11-cv-04766-JSW Document141 Filed02/12/13 Page15 of 21 1 20. OTHER MATTERS 2 There are no other matters at this time. 3 Respectfully submitted, 4 DATED: February 12, 2013 5 6 7 8 9 By: /s/ Elaine T. Byszewski Elaine T. Byszewski HAGENS BERMAN SOBOL SHAPIRO LLP 301 North Lake Avenue, Suite 203 Pasadena, CA 91101 Telephone: (213) 330-7150 Facsimile: (213) 330-7152 Email: elaine@hbsslaw.com 14 Steve W. Berman George W. Sampson Craig R. Spiegel HAGENS BERMAN SOBOL SHAPIRO LLP 1918 Eighth Avenue, Suite 3300 Seattle, WA 98101 Telephone: (206) 623-7292 Facsimile: (206) 623-0594 Email: steve@hbsslaw.com Email: george@hbsslaw.com Email: craig@hbsslaw.com 15 Attorneys for the Plaintiffs 10 11 12 13 16 17 18 19 20 21 22 23 24 25 26 BAKER & MILLER PLLC By: /s/ W. Todd Miller W. Todd Miller (pro hac vice) BAKER & MILLER PLLC 2401 Pennsylvania Avenue, N.W., Ste 300 Washington, D.C. 20037 Telephone: (202) 663-7820 Facsimile: (202) 663-7849 Email: tmiller@bakerandmiller.com Steven R. Kuney (pro hac vice) Kevin Hardy (pro hac vice) WILLIAMS & CONNOLLY LLP 725 Twelfth Street, NW Washington, D.C. 20005 Telephone: (202) 434-5000 Facsimile: (202) 434-5029 Email: skuney@wc.com Email: khardy@wc.com 27 28 - 14 REVISED JOINT CASE MANAGEMENT STATEMENT; STIPULATION AND [PROPOSED] SCHEDULING ORDER 2111319.2 Case3:11-cv-04766-JSW Document141 Filed02/12/13 Page16 of 21 1 2 3 4 5 Jesse W. Markham, Jr. (SBN 87788) Marshall P. Madison Professor of Law University of San Francisco School of Law 2130 Fulton Street San Francisco, CA 94117 Telephone: (415) 422-4473 Email: markham@usfca.edu Attorneys for Defendant Dairy Farmers of America, Inc. 6 7 8 9 10 11 12 13 14 EIMER STAHL LLP By: /s/ Nathan P. Eimer Nathan P. Eimer (pro hac vice) Vanessa G. Jacobsen (pro hac vice) Daniel D. Birk (pro hac vice) EIMER STAHL LLP 224 South Michigan Avenue, Suite 1100 Chicago, Illinois 60604 Telephone: (312) 660-7601 Facsimile: (312) 692-1718 Email: neimer@eimerstahl.com Email: vjacobsen@eimerstahl.com Email: dbirk@eimerstahl.com 18 George A. Nicoud (SBN 106111) Matthew S. Kahn (SBN 261679) GIBSON, DUNN & CRUTCHER LLP 555 Mission Street, Suite 3000 San Francisco, CA 94105-2933 Telephone: (415) 393-8200 Facsimile: (415) 393-8306 Email: tnicoud@gibsondunn.com Email: mkahn@gisbsondunn.com 19 Attorneys for Defendant Land O’Lakes, Inc. 15 16 17 20 21 22 23 24 25 26 27 28 BOND, SCHOENECK & KING, PLLC By: /s/ Edward R. Conan Edward R. Conan (pro hac vice) Suzanne O. Galbato (pro hac vice) Lucy Clippinger (pro hac vice) BOND, SCHOENECK & KING, PLLC One Lincoln Center Syracuse, NY 13202 Telephone: (315) 218-8000 Facsimile: (315) 218-8100 Email: econan@bsk.com Email: sgalbato@bsk.com Email: lsclippinger@bsk.com - 15 REVISED JOINT CASE MANAGEMENT STATEMENT; STIPULATION AND [PROPOSED] SCHEDULING ORDER 2111319.2 Case3:11-cv-04766-JSW Document141 Filed02/12/13 Page17 of 21 1 5 William S. Farmer (SBN 46694) Jacob P. Alpren (SBN 235713) FARMER BROWNSTEIN LLP 235 Pine Street, Suite 1300 San Francisco, CA 94104 Telephone (direct and fax): (415) 962-2877 Main: (415) 795-2050 Email: wfarmer@farmerbrownstein.com Email: jalpern@farmerbrownstein.com 6 Attorneys for Defendant Dairylea Cooperative Inc. 2 3 4 7 8 9 10 11 12 13 14 KEKER & VAN NEST LLP By: /s/ Paula L. Blizzard Paula L. Blizzard Jan N. Little KEKER & VAN NEST LLP 633 Battery Street San Francisco, CA 94111 Telephone: (415) 391-5400 Facsimile: (415) 397-7188 Email: pblizzard@kvn.com Email: jlittle@kvn.com 18 Jill M. O’Toole (pro hac vice) Susan S. Murphy (pro hac vice) SHIPMAN & GOODWIN LLP One Constitution Plaza Hartford, CT 06103 Telephone: (860) 251-5000 Facsimile: (860) 251-5218 Email: jotoole@goodwin.com Email: smurphy2@goodwin.com 19 Attorneys for Defendant Agri-Mark, Inc. 15 16 17 20 21 22 23 24 25 26 27 28 STEPTOE & JOHNSON LLP By: /s/ Chong S. Park Chong S. Park (SBN 163451) John J. Kavanagh (pro hac vice) Kenneth P. Ewing (pro hac vice) STEPTOE & JOHNSON LLP 1330 Connecticut Ave., NW Washington, DC 20036 Telephone: (202) 429-3000 Facsimile: (202) 429-3902 Email: cpark@steptoe.com Email: jkavanagh@steptoe.com Email: kewing@steptoe.com - 16 REVISED JOINT CASE MANAGEMENT STATEMENT; STIPULATION AND [PROPOSED] SCHEDULING ORDER 2111319.2 Case3:11-cv-04766-JSW Document141 Filed02/12/13 Page18 of 21 1 2 3 4 5 6 7 8 Dylan Ruga STEPTOE & JOHNSON LLP 2121 Avenue of the Stars Suite 2800 Los Angeles, CA 90067 Telephone (310) 734-3228 Facsimile (310) 734-3300 Email: DRuga@steptoe.com Attorneys for Defendant National Milk Producers Federation I, Elaine T. Byszewski, attest that concurrence in the filing of this document has been obtained from each of the other signatories. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 17 REVISED JOINT CASE MANAGEMENT STATEMENT; STIPULATION AND [PROPOSED] SCHEDULING ORDER 2111319.2 Case3:11-cv-04766-JSW Document141 Filed02/12/13 Page19 of 21 1 [PROPOSED] ORDER 2 BASED ON STIPULATION OF THE PARTIES, THE FOLLOWING SCHEDULE IS ENTERED 3 FOR THIS CASE: 4 Last day for Rule 26(a) Initial Disclosures February 1, 2013 5 Initial Case Management Conference February 8, 2013 6 Last day to negotiate preservation order February 12, 2013 7 Last day to negotiate ESI protocol February 12, 2013 8 Last day to exchange custodian lists (including positions and dates) and information sufficient to identify relevant shared or network drives, systems, or servers in which custodians’ names cannot be searched on the system metadata February 28, 2013 Last day to meet and confer re custodians/shared drives February 28, 2013 Last day to negotiate re a search term protocol February 28, 2013 14 Last day to meet and confer re custodians and shared drives March 14, 2013 15 Last day to commence rolling production May 1, 2013 16 Last day to produce documents necessary for class certification to file Last day for motion for class certification August 1, 2013 Last day to file updated case status report December 6, 2013 20 Last day to file Opposition to motion for class certification October 11 December 13, 2013 21 Second Case Management Conference December 13, 2013 22 Last day to file reply in support of motion for class certification October 25, 2013 February 21, 2014 Fact discovery closes Hearing on motion for class certification February 28, 2014 November 15, 2013 April 4, 2014 Last day for expert reports on merits TBD Last day for depositions of experts TBD 9 10 11 12 13 17 18 19 23 24 25 26 27 28 September 15, 2013 -1REVISED JOINT CASE MANAGEMENT STATEMENT; STIPULATION AND [PROPOSED] SCHEDULING ORDER 2111319.2 Case3:11-cv-04766-JSW Document141 Filed02/12/13 Page20 of 21 1 Last day for responsive expert reports TBD 2 Close of expert discovery TBD 3 Last day to file dispositive motions TBD 4 Oppositions to dispositive motions TBD 5 Reply briefs in support of dispositive motions TBD 6 Hearing on dispositive motions TBD 7 Motions in limine TBD 8 Oppositions to motions to limine TBD 9 Joint Proposed Final Pretrial Order TBD 10 Pre-trial Conference TBD 11 Trial TBD 12 IT IS SO ORDERED 13 14 15 February 13, 2013 Dated: ___________________ ___________________________ Hon. Jeffrey S. White UNITED STATES DISTRICT JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28 -2REVISED JOINT CASE MANAGEMENT STATEMENT; STIPULATION AND [PROPOSED] SCHEDULING ORDER 2111319.2

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