United States of America v. United States Sugar Corporation et al

Filing 73

MEMORANDUM OPINION. Signed by Judge Maryellen Noreika on 1/11/2022. (dlw)

Case 1:21-cv-01644-MN Document 73 Filed 01/11/22 Page 1 of 20 PageID #: 1010

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
UNITED STATES OF AMERICA,
Plaintiff,
v.
UNITED STATES SUGAR
CORPORATION, UNITED SUGARS
CORPORATION, IMPERIAL SUGAR
COMPANY and LOUIS DREYFUS
COMPANY LLC,
Defendants.

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C.A. No. 21-1644 (MN)

MEMORANDUM OPINION
Laura D. Hatcher, Chief, Civil Division, Shamoor Anis, UNITED STATES ATTORNEY’S OFFICE,
Wilmington, DE; Brian Hanna, Jonathan Y. Mincer, Jenigh Garrett, Jill Ptacek, UNITED STATES
DEPARTMENT OF JUSTICE, Antitrust Division, Washington, DC – attorneys for Plaintiff
Jack B. Blumenfeld, Brian P. Egan, MORRIS, NICHOLS, ARSHT & TUNNELL LLP, Wilmington, DE;
Lawrence E. Buterman, LATHAM & WATKINS LLP, New York, NY; Amanda P. Reeves, LATHAM
& WATKINS LLP, Washington, DC; Elyse M. Greenwald, LATHAM & WATKINS LLP, Los Angeles,
CA – attorneys for Defendant United States Sugar Corporation
Daniel K. Hogan, Daniel C. Kerrick, HOGAN MCDANIEL, Wilmington, DE; Peter J. Schwingler,
STINSON LLP, Minneapolis, MN – attorneys for Defendant United Sugars Corporation
Kelly E. Farnan, RICHARDS, LAYTON & FINGER, P.A., Wilmington, DE; Amanda L. Wait, Vic
Domen, NORTON ROSE FULBRIGHT US LLP, Washington, DC; Darryl Wade Anderson, NORTON
ROSE FULBRIGHT US LLP, Houston, TX; Christine A. Varney, David R. Marriott, Peter T. Parbur,
Timothy G. Cameron, CRAVATH, SWAINE & MOORE LLP, New York, NY – attorneys for
Defendants Imperial Sugar Company and Louis Dreyfus Company LLC

January 11, 2022
Wilmington, Delaware

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NOREIKA, U.S. DISTRICT JUDGE:
Before the Court is the motion (D.I. 13) of Defendants United States Sugar Corporation
(“U.S. Sugar”), United Sugars Corporation (“United Sugars”), Imperial Sugar Company
(“Imperial Sugar”) and Louis Dreyfus Company LLC (“Louis Dreyfus”) (collectively,
“Defendants”) to transfer this case to the Southern District of Georgia pursuant to 28 U.S.C.
§ 1404(a). For the reasons set forth below, the Court DENIES Defendants’ motion. 1
I.

BACKGROUND
U.S. Sugar is a Delaware corporation with its principal place of business in Florida.

(D.I. 14 at 3; see also D.I. 18 ¶ 2). U.S. Sugar processes sugarcane grown by its farmers and sells
that refined sugar through a member-owned agricultural cooperative, United Sugars. (D.I. 18 ¶ 2;
see also D.I. 16 ¶ 2). United Sugars is incorporated in Minnesota and maintains its principal place
of business in Minnesota. (D.I. 16 ¶ 3). The sugar processed by U.S. Sugar and sold through
United Sugars reaches many states on the East Coast, 2 including Delaware. (D.I. 1 ¶¶ 3 & 31; see
also D.I. 16 ¶ 4).
One of United Sugars’s direct competitors is Imperial Sugar, a Texas company with offices
in Port Wentworth, Georgia and Sugar Land, Texas. (D.I. 17 ¶ 3; see also D.I. 1 ¶ 11 (Imperial
Sugar’s headquarters in Sugar Land, Texas) & ¶¶ 40-47 (United Sugars and Imperial Sugar direct
competitors)). Instead of growing its own sugarcane, Imperial Sugar receives imported raw sugar
1

Defendants’ motion also requested that trial be expedited and held sometime in April 2022
in the event the Court declines to transfer the case to the Southern District of Georgia. (See
D.I. 13; see also D.I. 14 at 16). The Court has already set a trial date in that timeframe.
(See D.I. 38 at 13:15-14:7; see also D.I. 21).

2

The Government refers to the geographic area at issue in this lawsuit as the “Southeastern
United States,” which apparently includes Delaware based on the U.S. Census definition
of “South Atlantic” states. (See, e.g., D.I. 1 ¶¶ 3 & 26; see also D.I. 30 at 1 & 1 n.1). The
categorization of Delaware as a “southern” state seems counterintuitive and, as such, the
Court declines to use Plaintiff’s terminology.
1

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and processes the sugar in its Port Wentworth sugar refinery. (Id. ¶¶ 3 & 5). The Port Wentworth
refinery is the only sugar refinery that Imperial Sugar owns. (Id. ¶ 3). The sugar processed and
sold by Imperial Sugar reaches many states on the East Coast, including Delaware. (D.I. 1 ¶¶ 3 &
31; see also D.I. 17 ¶ 6). Imperial Sugar is wholly owned by Louis Dreyfus, a Delaware limited
liability company. 3 (D.I. 17 ¶ 7).
On March 24, 2021, U.S. Sugar and Louis Dreyfus entered into an Asset Purchase
Agreement (“the Agreement”), whereby U.S. Sugar would acquire all of Imperial Sugar’s assets
– including the Port Wentworth facility – for $315 million. (D.I. 1 ¶ 13; see also D.I. 33, Ex. 1
(Asset Purchase Agreement)). Following execution of the Agreement, U.S. Sugar, Imperial Sugar
and Louis Dreyfus also entered into “a side letter agreement” with United Sugars, which apparently
provided that United Sugars would comply with certain obligations set forth in the Agreement.
(D.I. 1 ¶ 13). United Sugars then entered into an agreement with its four members (including U.S.
Sugar), which provided that United Sugars would market all of the sugar produced by Imperial
Sugar if the acquisition is allowed to proceed. (Id.). U.S. Sugar’s acquisition of Imperial Sugar
would apparently leave only two major sugar producers – United Sugars and Domino – in control
of roughly 75% of the sugar sales in the Southeastern United States. (D.I. 1 ¶ 4). Under the Asset
Purchase Agreement, the Outside Date is September 24, 2022 but the parties can mutually agree
to extend this date. (See D.I. 15 ¶ 11; see also D.I. 33, Ex. 1 § 10.1(b)).
On November 23, 2021, the United States of America (“Plaintiff” or “the Government”)
initiated this antitrust action under Section 7 of the Clayton Act, ultimately seeking to prevent U.S.
Sugar from acquiring Imperial Sugar. (See generally D.I. 1). On December 3, 2021, Defendants

3

Louis Dreyfus Company is owned by Louis Dreyfus Company B.V., a foreign company
headquartered in the Netherlands. (D.I. 17 ¶ 7).
2

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filed a motion to transfer this action to the Southern District of Georgia, where Imperial Sugar’s
Port Wentworth refinery (i.e., the main target asset) is located. (See D.I. 13, 14, 15, 16, 17 & 18).
The Government opposes transferring this action. (See D.I. 30, 32 & 33). Expedited briefing on
Defendants’ motion was completed on December 17, 2021. (See D.I. 37).
II.

LEGAL STANDARD
District courts have the authority to transfer venue “[f]or the convenience of parties and

witnesses, in the interest of justice, . . . to any other district or division where it might have been
brought.” 28 U.S.C. § 1404(a). “A plaintiff, as the injured party, generally ha[s] been ‘accorded
[the] privilege of bringing an action where he chooses.’” Helicos Biosciences Corp. v. Illumina,
Inc., 858 F. Supp. 2d 367, 371 (D. Del. 2012) (quoting Norwood v. Kirkpatrick, 349 U.S. 29, 31
(1955)). Plaintiff’s choice of location in bringing the action “should not be lightly disturbed.”
Jumara v. State Farm Ins. Co., 55 F.3d 873, 879 (3d Cir. 1995).
In determining whether an action should be transferred under § 1404(a), the Third Circuit
has recognized that:
courts have not limited their consideration to the three enumerated
factors in § 1404(a) (convenience of parties, convenience of
witnesses, or interests of justice), and, indeed, commentators have
called on the courts to “consider all relevant factors to determine
whether on balance the litigation would more conveniently proceed
and the interests of justice be better served by transfer to a different
forum.”
Jumara, 55 F.3d at 879 (citation omitted). The Jumara court went on to describe twelve “private
and public interests protected by the language of § 1404(a).” Id. The private interests include:
plaintiff’s forum preference as manifested in the original choice; the
defendant’s preference; whether the claim arose elsewhere; the
convenience of the parties as indicated by their relative physical and
financial condition; the convenience of the witnesses – but only to
the extent that the witnesses may actually be unavailable for trial in
one of the fora; and the location of books and records (similarly

3

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limited to the extent that the files could not be produced in the
alternative forum).
Id. at 879 (citations omitted). The public interests include:
the enforceability of the judgment; practical considerations that
could make the trial easy, expeditious, or inexpensive; the relative
administrative difficulty in the two fora resulting from court
congestion; the local interest in deciding local controversies at
home; the public policies of the fora; and the familiarity of the trial
judge with the applicable state law in diversity cases.
Id. at 879-80.
The party seeking transfer bears the burden “to establish that a balancing of proper interests
weigh[s] in favor of transfer.” Shutte v. Armco Steel Corp., 431 F.2d 22, 25 (3d Cir. 1970). Courts
have “broad discretion to determine, on an individualized, case-by-case basis, whether
convenience and fairness considerations weigh in favor of transfer.” Jumara, 55 F.3d at 883. The
Third Circuit has held, however, that “unless the balance of convenience of the parties is strongly
in favor of [the] defendant, the plaintiff’s choice of forum should prevail.” Shutte, 431 F.2d at 25.
III.

ANALYSIS
As an initial matter, the Court addresses the threshold inquiry under § 1404(a) – i.e.,

whether this action might have originally been brought in the transferee district. Defendants argue
that this action could have originally be brought in the Southern District of Georgia, which is where
the target company’s only sugar refinery is located. (D.I. 14 at 6). The Government does not
dispute that the case could have originally been brought in that district. (Compare D.I. 14 at 6 n.2
(Defendants noting that the Government was still mulling the threshold issue), with D.I. 30 (the
Government’s brief, which is silent on the threshold issue)). Indeed, the Government’s opposition
is focused on the private and public interest factors under Jumara. Thus, in the Court’s view, the
threshold inquiry under § 1404(a) is satisfied and the only issue before the Court is whether to

4

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exercise its discretion under § 1404(a) to transfer the case to the Southern District of Georgia. The
Court addresses the Jumara factors in turn below.
1.

Plaintiff’s Forum Preference

This factor weighs against transfer. “It is black letter law that a plaintiff’s choice of a
proper forum is a paramount consideration in any determination of a transfer request” – one that
“should not be lightly disturbed.” Shutte, 431 F.2d at 25 (internal quotations and citation omitted).
“Assuming jurisdiction and proper venue, weight is given to plaintiff’s choice because it is
plaintiff’s choice and a strong showing under the statutory criteria in favor of another forum is
then required as a prerequisite to transfer.” 4 Burroughs Wellcome Co. v. Giant Food, Inc.,
392 F. Supp. 761, 763 n.4 (D. Del. 1975).
Defendants recognize that the Government’s choice to litigate in Delaware weighs against
transfer. (D.I. 14 at 13). Defendants nevertheless argue that this choice should be given “little
deference” because Delaware is “a forum far from the center of the alleged ‘acute harm.’” (Id.).
In Defendants’ view, the relevant forum is the Southern District of Georgia, which is where
Imperial Sugar’s main asset is located and a venue much closer to the “focus” of this case. (See
id. at 15). According to Defendants, Delaware has “no meaningful ties” to the controversy at issue
here and, as such, the Government’s preferred forum is entitled to less weight than it may otherwise
be afforded. (See id. at 13-15; see D.I. 37 at 1). In support of their arguments, Defendants
primarily rely on a case from the District of Columbia, which states that a plaintiff’s choice of
forum should be given less deference if the forum has an insufficient nexus to the case. See FTC
v. Illumina, Inc., No. 21-873 (RC), 2021 WL 1546542, at *6 (D.D.C. Apr. 20, 2021).

4

No Defendant has disputed that venue is proper here or that this Court may exercise
personal jurisdiction over all Defendants.
5

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The Government argues that its choice of forum is “paramount,” particularly in antitrust
cases where there is a specific venue statute (15 U.S.C. § 22) that is designed to make it easier for
the Government (and others) to litigate these types of disputes. (See D.I. 30 at 6-9). That is, as
long as its choice of venue is “legitimate and rational,” the choice should be afforded great
deference. (Id. at 6-7). And here, the decision to file this case in Delaware is purportedly
legitimate and rational because the proposed acquisition is between two Delaware companies and
governed by an Asset Purchase Agreement that requires any disputes relating to the acquisition be
litigated in Delaware. (Id. at 7; see also D.I. 33, Ex. 1 § 12.20). In the Government’s view, these
facts undercut any argument by Defendants that Delaware has no connection to this dispute (or
that Delaware is an inconvenient forum to litigate this dispute). (D.I. 30 at 7). Additionally, the
Government argues that the geographic area relevant to the present dispute includes Delaware
because the proposed acquisition would result in United Sugars controlling an “overwhelming
percentage” of sugar sales in Delaware. (Id. at 8).
The Court agrees that the Government’s choice of forum should be given great deference.
Section 12 of the Clayton Act provides that “[a]ny suit, action, or proceeding under the antitrust
laws against a corporation may be brought not only in the judicial district whereof it is an
inhabitant, but also in any district wherein it may be found or transacts business . . . .” 15 U.S.C.
§ 22. This venue provision was enacted to afford some flexibility in selecting a venue for those
attempting to enforce antitrust laws. See United States v. Nat’l City Lines, 334 U.S. 573, 586-87
(1948). In fact, because of this provision, “some courts have found that the United States’ choice
of forum in antitrust cases should receive heightened respect.” United States v. Energy Sols., Inc.,
No. 16-1056-GMS, 2016 WL 7387069, at *2 (D. Del. Dec. 21, 2016).

6

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Although Defendants argue that the Government’s choice of forum should be afforded
minimal weight because Delaware is not particularly connected to the present dispute, the Court
finds there are sound reasons for the Government’s choice. First, the proposed acquisition of
Imperial Sugar by U.S. Sugar is a transaction between two companies incorporated in Delaware –
U.S. Sugar and Louis Dreyfus. (See, e.g., D.I. 14 at 4; D.I. 30 at 3-4). 5 The Court also finds it
important that U.S. Sugar and Louis Dreyfus agreed to litigate any disputes relating to the Asset
Purchase Agreement in Delaware. (D.I. 33, Ex. 1 § 12.20). Although this does not mean that they
agreed to litigate antitrust disputes brought by the Government here as well, the agreement does
lend reason to the Government’s choice of Delaware as its preferred forum. Indeed, these facts
are very similar to those in United States v. Energy Solutions, Inc., where the Government’s choice
of Delaware was entitled to deference:
The District of Delaware does have an interest in the subject matter
and the parties because the Defendants chose to incorporate here and
selected this forum as the District to litigate disputes resulting from
their merger agreement. Even though that forum selection clause
does not apply to the present action brought by the Government, it
still ties the parties to this District.
2016 WL 7387069, at *2 (internal citations omitted).
Additionally, this Court believes that the Government has a further basis for this forum
because the proposed acquisition will allegedly impact sugar sales (and competition) here in
Delaware. (See D.I. 30 at 8-9). Indeed, the Government asserts that, because United Sugars and
Imperial Sugars are the two largest sugar sellers in Delaware, the proposed acquisition would result
in United Sugars controlling most sugar sales in Delaware if allowed to proceed. (Id. at 8). Finally,
5

Attempting to downplay this critical fact, Defendants point to the presence of two nonDelaware entities – Imperial Sugar and United Sugars – as additional Defendants in this
case. (See D.I. 14 at 14-15; see also D.I. 37 at 2). The Court does not believe that the
presence of these non-Delaware entities automatically lessens the deference that should be
afforded to the Government’s choice of forum.
7

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the Government’s Antitrust Division is headquartered in Washington, D.C., and Delaware is
apparently the closest forum where venue and personal jurisdiction are proper for all Defendants
– an assertion that Defendants do not dispute. (Id. at 9).
In sum, although Defendants contend that Delaware “has no meaningful ties to the
controversy,” the Court has found several sound reasons for the Government to choose Delaware
as the forum to litigate this dispute. This Court therefore does not see a distinction here that
justifies affording less weight to the Government’s choice of forum. The Government’s choice to
litigate in Delaware remains entitled to paramount consideration. 6
2.

Defendants’ Forum Preference

This factor favors transfer. Defendants’ interest in having this case transferred to the
Southern District of Georgia is apparent.
3.

Whether the Claims Arose Elsewhere

This factor is neutral. As to where the claim(s) arose, both sides generally agree that the
Court should look to “where the corporate decisions underlying th[e] claims were made.” F.T.C.
v. Graco Inc., No. 11-02239 RLW, 2012 WL 3584683, at *5 (D.D.C. Jan. 26, 2012); see also
Energy Sols., 2016 WL 7387069, at *4. That is, in the context of this proposed acquisition, the
Court should at least evaluate where the acquisition was negotiated, drafted and executed. See
Energy Sols., 2016 WL 7387069, at *4. The Court may also take into account where Defendants’
headquarters are located. See Graco Inc., 2012 WL 3584683, at *5.

6

This Court generally agrees with the reasoning set forth in Burroughs Wellcome, where
Judge Stapleton found that the Third Circuit’s rule that a plaintiff’s choice is of paramount
consideration is “an across-the-board rule favoring plaintiff’s choice of forum.”
392 F. Supp. at 762-63; see also VLSI Tech. LLC v. Intel Corp., No. 18-966-CFC, 2018
WL 5342650, at *4 (D. Del. Oct. 29, 2018).
8

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Defendants argue that this factor weighs in favor of transfer because (1) none of the
negotiations, discussions or meetings relating to the proposed acquisition took place in Delaware
and (2) the negotiations involved site visits and plant tours of the Imperial Sugar refinery in Port
Wentworth, Georgia. (D.I. 14 at 8). Moreover, in Defendants’ view, that the main asset to be
acquired in the transaction is located in Port Wentworth, along with a purportedly key due
diligence witness for Imperial Sugar, further suggest that the claim arose in the Southern District
of Georgia. (Id.). The Government argues that Defendants have failed to offer any evidence that
the proposed acquisition was actually negotiated in Georgia. (D.I. 30 at 10). Instead, the current
record suggests that negotiations occurred mainly in Florida and New York City. (Id. (citing
Defendants’ declarations and internal documents)). The Government also notes that none of the
Defendants have corporate headquarters located in Georgia and only one person involved in the
deal is located there. (Id.). And, as the Government again points out, this all stands in contrast to
the fact that the proposed transaction is between two Delaware companies and governed by a
contract that makes Delaware the exclusive forum to litigate any disputes over the transaction.
(Id.).
The Court cannot conclude the claim here arose in the Southern District of Georgia. The
evidence suggests that negotiations primarily occurred in Florida and New York – not Georgia or
Delaware – and there is no evidence indicating where the agreement was drafted or executed.
Similarly, no Defendant maintains its principal place of business in Georgia (or Delaware). Based
on the current record, the Court concludes that this factor is largely neutral. See Energy Sols.,
2016 WL 7387069, at *4 (finding this factor largely neutral where record did not “definitively
indicate that negotiations occurred in the [transferee district]” but also “d[id] not indicate where a
majority of the negotiations took place”).

9

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4.

Convenience of the Parties as Indicated by Their Relative Physical
and Financial Condition

This factor is neutral. Determining convenience of the parties requires the Court to
consider: (1) the parties’ physical location; (2) the associated logistical and operational costs to
the parties in traveling to Delaware – as opposed to the proposed transferee district – for litigation
purposes; and (3) the relative ability of each party to bear these costs in light of its size and financial
wherewithal. See MEC Resources, LLC v. Apple, Inc., 269 F. Supp. 3d 218, 225 (D. Del. 2017)
(citing Memory Integrity, LLC v. Intel Corp., No. 13-1804 (GMS), 2015 WL 632026, at *4
(D. Del. Feb. 13, 2015) (internal quotations omitted)). When a party seeking transfer is a Delaware
corporation, it “must prove that litigating in Delaware would impose a unique or unusual burden
on [its] operations.” Graphics Props. Holdings Inc. v. Asus Comput. Int’l, Inc., 964 F. Supp. 2d
320, 325 (D. Del. 2013) (alteration in original) (internal quotation marks and citation omitted); see
also Universal Secure Registry, LLC v. Apple, Inc., No. 17-585 (CFC) (SRF), 2018 WL 4502062,
at *3 (D. Del. Sept. 19, 2018) (“When a party accept[s] the benefits of incorporation under the
laws of the State of Delaware, a company should not be successful in arguing that litigation in
Delaware is inconvenient, absent some showing of a unique or unexpected burden.” (internal
quotation marks and citation omitted) (alteration in original)).
Here, Defendants argue that the Southern District of Georgia is more convenient than this
District for the parties because no company has employees in Delaware, whereas Georgia is where
the to-be acquired Port Wentworth facility is located and it is also closer to U.S. Sugar’s
headquarters in Florida. (D.I. 14 at 9). Additionally, “critical employee witnesses” for Imperial
Sugar are purportedly located in the Southern District of Georgia and “critical employee
witnesses” for U.S. Sugar are located in Florida. (Id.). As for United Sugars and Louis Dreyfus,
Defendants argue that they will need to travel regardless of forum but that their employees travel

10

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to Georgia (and Florida) regularly. (Id.; see also D.I. 17 ¶ 11; D.I. 16 ¶ 5). The Government
responds that United Sugars and Louis Dreyfus have headquarters closer to Delaware than
Georgia.

(D.I. 30 at 12 (Louis Dreyfus headquartered in Connecticut and United Sugars

headquartered in Minnesota)). Moreover, in the Government’s view, Louis Dreyfus and U.S.
Sugar face a particularly “uphill climb” in showing that Delaware is inconvenient because they
chose to incorporate in Delaware (and agreed to litigate disputes about the transaction here).
(D.I. 30 at 11). Additionally, the Government asserts that all Defendants are large corporations
with national (or international) presences, and they all have “more than adequate” resources to
litigate in this District. 7 (Id. at 12). And as for Imperial Sugar, the Government argues that its
operations in Georgia should not be dispositive of this factor when the other three Defendants (and
Plaintiff) have no such operations there. (Id.).
On this factor, the Court begins its analysis with U.S. Sugar and Louis Dreyfus. Given that
U.S. Sugar and Louis Dreyfus are incorporated in Delaware, they must demonstrate that litigating
here “would impose a unique or unusual burden on [their] operations.” Graphics Props. Holdings,
964 F. Supp. 2d at 325. Defendants fail in this regard. There is no articulation or specific showing
of why litigating here would impose a unique or unusual hardship on U.S. Sugar or Louis Dreyfus
(e.g., diverting resources, etc.). Defendants simply argue that Georgia is more convenient because
it is closer to U.S. Sugar’s headquarters (and employees). Yet the decision by U.S. Sugar and
Louis Dreyfus to incorporate in Delaware and their agreement to litigate disputes relating to
proposed acquisition here strongly suggest that this District is not an inconvenient forum. See
Energy Sols., 2016 WL 7387069, at *4 (“Both Defendants are incorporated in Delaware and the
Purchase Agreement reached between the two parties designates Delaware as the venue where any
7

Defendants do not dispute this characterization.

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disputes arising out of the agreement should be litigated. . . . [T]he parties’ willingness to travel to
and litigate in Delaware, made apparent by the forum selection clause, undermines any argument
Defendants could make that Delaware is an inconvenient forum.” (citations omitted)).
As for the two Defendants not incorporated in Delaware, the Court is unpersuaded that the
Southern District of Georgia is any more convenient than this District for United Sugars. United
Sugars is a Minnesota company with its headquarters in Minnesota, which is closer to Delaware
than Georgia. 8 And as for Imperial Sugar, it does appear that Georgia may be more convenient
given that its sugar refinery (and the main target asset) is located there, along with several hundred
Imperial Sugar employees. That being said, that the proposed transferee forum may be more
convenient for one out of a number of Defendants does not mean that this factor favors transfer,
particularly where all Defendants have more than adequate financial resources to litigate in either
forum. This is true for the Government as well – although Delaware is closer to Washington, D.C.
than the Southern District of Georgia, the Government is likewise equipped with vast resources
and could readily litigate in either forum. Thus, the Court ultimately finds that litigating in
Delaware is roughly as convenient as litigating Georgia, and this factor is neutral.
5.

Convenience of the Witnesses

This factor is neutral. This factor carries weight “only to the extent that the witnesses may
actually be unavailable for trial in one of the fora.” Jumara, 55 F.3d at 879; see also VLSI, 2018
WL 5342650, at *7 (citing Smart Audio, 910 F. Supp. 2d at 732 (noting that this factor applies
only insofar as “a witness actually will refuse to testify absent a subpoena”)). “[W]itnesses who
are employed by a party carry no weight” because “each party is able, indeed, obligated to procure

8

In fact, although no Defendant maintains headquarters in Delaware, the same is true in
Georgia as well – no Defendant has a principal place of business in Georgia either.
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the attendance of its own employees for trial.” Affymetrix, Inc. v. Synteni, Inc., 28 F. Supp. 2d
192, 203 (D. Del. 1998). “[T]he Court should be particularly concerned not to countenance undue
inconvenience to third-party witnesses[] who have no direct connection to the litigation.”
Intellectual Ventures I, 842 F. Supp. 2d at 757.
Defendants assert that this factor “strongly supports transfer” because the most relevant
non-party witnesses will likely be customers in Georgia and its bordering states. (D.I. 14 at 9-10).
Defendants also argue that, in response to the Government’s claim that competition in Georgia
will be diminished if the acquisition is allowed to proceed, evidence from other sugar companies
in the area will be “a central issue at trial.” (Id. at 10). After identifying a handful of such sugar
companies, Defendants assert that “it will be far easier for witnesses from these companies to
testify at trial in Georgia than to testify in Delaware.” (Id.). The Government responds that this
factor only carries weight when third-party witnesses may actually be unavailable in one of the
fora but, here, the Clayton Act ensures that such witnesses will generally be available in both.
(D.I. 30 at 13). That is, the Clayton Act explicitly provides that trial subpoenas may be served in
any judicial district. See 15 U.S.C. § 23 (“In any suit, action, or proceeding brought by or on
behalf of the United States subpoenas for witnesses who are required to attend a court of the United
States in any judicial district in any case, civil or criminal, arising under the antitrust laws may run
into any other district . . . .”). In the Government’s view, then, any third-party witnesses will
“likely be as available for trial in Delaware as they are in Georgia.” (D.I. 30 at 13).
No party has identified any witness who would be unavailable for trial in Delaware, which
is the main consideration under this Jumara factor. See Jumara, 55 F.3d at 879. As to the thirdparty witnesses, it is generally true that the Clayton Act provides for nationwide service of trial
subpoenas, but it is still important to consider the convenience of trial in Delaware versus Georgia

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for third-party witnesses. Defendants have identified a number of competitor sugar companies
who may be called upon to offer testimony at trial, but Defendants have made no real showing that
Georgia is more convenient than Delaware for any of them (apart from attorney argument).
Similarly, the Government asserts that customers in Delaware, Maryland, Virginia, and West
Virginia could also be relevant witnesses at trial and that Delaware would be more convenient than
Georgia, but this is also largely based on attorney argument. (D.I. 30 at 14). Ultimately, the Court
is left with an argument by Defendants that Georgia would be a more convenient forum for
potential third-party sugar companies, alongside an argument by the Government that Delaware
would be a more convenient forum for potential customer witnesses. On the state of the current
record, the Court cannot conclude that one forum is any more convenient than the other under this
factor. Therefore, this factor is neutral.
6.

Location of Books and Records

This factor slightly favors transfer. Jumara instructs the Court to give weight to the
location of books and records necessary to the case only “to the extent that the files [and other
evidence] could not be produced in the alternative forum.” Jumara, 55 F.3d at 879. Defendants
argue that none of their relevant books and records are located in Delaware and are instead
“primarily located in Georgia, Florida, and Texas.” (D.I. 14 at 11). Defendants also assert that
the Southern District of Georgia is more convenient because this litigation will focus in part on
“U.S. Sugar’s strategic goals for the acquisition, which include improving the capacity, efficiency,
and operations” of Imperial Sugar’s refinery. (Id.). In Defendants’ view, site visit(s) to that facility
may be necessary for expert witnesses and “perhaps even the Court.” (Id.). Therefore, the
Southern District of Georgia is purportedly more convenient. The Government argues that this
factor is neutral, arguing that the state of technology today minimizes any burden with producing

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documents and further arguing that “critical evidence” is kept closer to Delaware than Georgia.
(D.I. 30 at 15). Additionally, the Government argues that it should not matter that the Imperial
Sugar refinery is located in the Southern District of Georgia because “no court has credited an
efficiencies defense in an antitrust merger case, much less approved an anticompetitive merger on
the basis of such a defense.” (Id.).
The Third Circuit has instructed that the relevant consideration here is whether the evidence
could not be produced in the competing fora. See Jumara, 55 F.3d at 879. Defendants have largely
failed to demonstrate that some evidence could not be produced here. For documents, many of
which have already been produced to the Government and with the state of technology in litigation
today and the ease with which documentary evidence can be produced electronically, the Court
finds that this factor should be afforded minimal weight. See, e.g., Blackbird Tech LLC v. E.L.F.
Beauty, Inc., No. 19-1150-CFC, 2020 WL 2113528, at *4 (D. Del. May 4, 2020); Intellectual
Ventures I, 842 F. Supp. 2d at 759. That being said, there are apparently some documents located
in Georgia. (D.I. 14 at 11; see also D.I. 17 ¶ 12). And as for the Imperial Sugar facility in Port
Wentworth, although it is true that it is located in the Southern District of Georgia, the Court has
not been persuaded that the building itself constitutes any particularly relevant evidence. 9
Therefore, this factor weighs in favor of transfer, but only slightly.
7.

Enforceability of the Judgment

This factor is neutral as judgments from this District and the Southern District of Georgia
would be equally enforceable.

9

The Court certainly does not believe a site visit is required in this case (i.e., a site visit by
the trial court).
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8.

Practical Considerations

This factor is neutral. The Court must consider “practical considerations that could make
the trial easy, expeditious, or inexpensive.” Jumara, 55 F.3d at 879. Defendants do not address
this factor, and the Government argues that this factor weighs against transfer. (See D.I. 30 at 1517). In the Government’s view, litigating this case in Delaware imposes no significant burden on
Defendants. (See id. at 16 (“U.S. Sugar and Louis Dreyfus are incorporated in Delaware, United
and Imperial are the largest sellers of sugar to customers in Delaware, and all Defendants have
access to ample financial resources.”)). Litigating this case in the Southern District of Georgia,
however, apparently imposes a more significant financial burden on the Government (located in
D.C.), United Sugars and Louis Dreyfus (located closer to Wilmington than Savannah), as well as
on third parties. (Id. at 16-17). The Government also again reiterates the forum-selection clause
governing the Asset Purchase Agreement, which obligates U.S. Sugar and Louis Dreyfus to litigate
their disputes over the proposed acquisition here in Delaware. (Id. at 16). In the Court’s view,
these concerns “have been raised, in the same way, as to other Jumara factors, and so the Court
will not ‘double-count’ them here.” Elm 3DS Innovations LLC v. SK Hynix, Inc., No. 14-1432
(LPS) (CJB), 2015 WL 4967139, at *11 (D. Del. Aug. 20, 2015). Therefore, because there is no
broader public benefit to this case proceeding in this Court versus the Southern District of Georgia
(or vice versa), this factor is neutral. See W.R. Berkley Corp. v. Niemela, No. 17-32 (GMS), 2017
WL 4081871, at *4 (D. Del. Sept. 15, 2017) (finding factor to be neutral when “neither party
addresse[d] the broader public costs of proceeding in one district or the other”).
9.

Relative Administrative Difficulty Due to Court Congestion

This factor is neutral. Although there may be general differences between the District of
Delaware and the Southern District of Georgia in the median length of time between filing and

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trial (or between filing and disposition) for civil cases, 10 any such differences are rendered moot
by this Court already having set aside time for trial in April 2022.11 (D.I. 38 at 13:15-14:7). In
fact, there is a trial date certain and soon in this District, whereas it is unknown when trial would
occur if this case were transferred to the Southern District of Georgia. In the Court’s view, this
factor is neutral. (That trial has already been set here may even weigh against transfer, particularly
because it is unknown when the Southern District of Georgia could schedule trial).
10.

Local Interest in Deciding Local Controversies at Home

This factor is neutral. Defendants argue that this factor favors transfer because “[t]he
Southern District of Georgia has a strong interest in overseeing a case that arises in that District
and that will allegedly most directly affect that District, state, and surrounding area.” (D.I. 14 at
11). In particular, Defendants emphasize that there are roughly 400 employees who work at the
Imperial Sugar refinery in Port Wentworth who allegedly will be directly affected by the proposed
acquisition and its attendant objectives. (Id.). Defendants also contend that a Georgia court would
be “in the best position” to decide the rights and interests of Georgia sugar customers (i.e., those
customers that the Government contends will face particularly acute harm from the proposed
acquisition). (Id. at 12). In response, the Government argues that this factor is neutral because the
interests implicated by this case are not local – to Georgia or elsewhere. (D.I. 30 at 17-18). Instead,

10

The Court takes judicial notice of the most recent Judicial Caseload Profiles, as of
March 31, 2021, which indicate that, in the District of Delaware, the median length of time
between filing and trial for civil cases is 28.7 months and the median length of time between
filing and disposition in civil cases is 7.3 months. In the Southern District of Georgia, the
median length of time in civil cases between filing and disposition is 8.9 months, and there
is no data available for the median length of time between filing and trial. The March 2021
statistics for the District Courts of the United States can be found at:
https://www.uscourts.gov/sites/default/files/data_tables/fcms_na_distprofile0331.2021.pdf.

11

For similar reasons, any differences in the number of pending cases per judgeship between
the two Districts have no bearing on this factor.
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the proposed acquisition would purportedly diminish competition between sugar producers
throughout many states on the East Coast (including Delaware), resulting in higher prices and
lesser quality sugar. (Id. at 18). Additionally, the Government points out that of the four
Defendants, only Imperial Sugar has a facility in Georgia – but is nevertheless headquartered in
Texas. (Id.). The remaining companies have national and international presences. (Id.).
The Court finds that this factor is neutral. Although the proposed acquisition concerns a
sugar refinery located in Georgia and owned by one of the Defendants, the Court ultimately finds
that the interests implicated in this case are not limited to Georgia or the immediately surrounding
area. If U.S. Sugar is permitted to acquire Imperial Sugar, there appears to be a real risk that
reduced competition (and resulting economic harm) will follow in a number of East Coast states,
including Delaware. See Energy Sols., 2016 WL 7387069, at *6 (finding local interest factor
neutral where harm that could result from proposed merger “will be felt by the firms[’] various
customers, distributed throughout 36 states, that rely on the firms for their commercial low-level
radioactive waste disposal needs”). Thus, in the Court’s view, this factor is neutral.
11.

Public Policies of the Fora

Defendants have not addressed this factor, and the Government suggests this factor weighs
against transfer. (D.I. 30 at 18-19). The Court generally agrees that this factor weighs against
transfer, albeit slightly, because several Defendants are Delaware corporations and public policy
encourages Delaware corporations to resolve disputes in Delaware courts. See, e.g., Graphics
Props. Holdings Inc., 964 F. Supp. 2d at 331 (even where only one party is a Delaware corporation,
public policy encouraging Delaware corporations to resolve disputes in Delaware weighs against
transfer). There is no similar argument for the Southern District of Georgia as no party is a Georgia
company or a company with its principal place of business in Georgia.

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12.

Familiarity of the Trial Judge with the Applicable State Law in
Diversity Cases

The parties agree that this factor is neutral as the Government’s claims arise under federal
antitrust laws and the familiarity of the respective districts with state law is not applicable.
13.

Balancing the Private and Public Factors

After balancing the twelve Jumara factors, the Court concludes that this case should not
be transferred to the Southern District of Georgia. Eight factors are neutral, and two factors weigh
in favor of transfer, with one favoring transfer only slightly. Two factors weigh against transfer,
including the Government’s choice of this forum, which is to be given paramount consideration.
Looking at the factors together and giving each its appropriate weight, Defendants have failed to
meet the heavy burden of showing that the Jumara factors weigh strongly in favor of transfer.
IV.

CONCLUSION
For the foregoing reasons, Defendants’ motion to transfer the case to the United States

District Court for the Southern District of Georgia pursuant to 28 U.S.C. § 1404(a) is DENIED.
An appropriate order will follow.

19