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)
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
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?