Growers 1-7 et al v Ocean Spray Cranberries, Inc.

Filing 296

Judge Rya W. Zobel: Memorandum of Decision entered granting in part and denying in part 254 Motion for Summary Judgment; denying 260 Motion for Summary Judgment; granting 268 Motion. Plaintiffs shall provide an accurate list of the plaintiffs who remain at this juncture and shall articulate the jurisdictional basis for remaining claims. (Urso, Lisa)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

CIVIL ACTION NO. 12-12016-RWZ

BARRY K. WINTERS, et al.
v.
OCEAN SPRAY CRANBERRIES, INC.

MEMORANDUM OF DECISION
October 31, 2017

ZOBEL, S.D.J.
In this action, some fifty plaintiffs allege that defendant Ocean Spray
Cranberries, Inc., (“Ocean Spray”), an agricultural cooperative, has unlawfully
manipulated the price of cranberry juice concentrate and discriminated against “B Pool”
members of the cooperative. Plaintiffs identify themselves as about four B Pool
growers and approximately forty-seven independent cranberry growers located in
Oregon, Wisconsin, and Massachusetts.1
In their Fourth Amended Complaint, plaintiffs bring three claims: (1) that Ocean
Spray engaged in unfair and deceptive acts in violation of Massachusetts General Laws
chapter 93A, § 11, thereby injuring the independent growers (Count I); (2) that Ocean
1

The exact num ber and identity of the plaintiffs in this case is unclear. One hundred three
parties are listed on the docket, while eighty-six appear on the Fourth Am ended Com plaint; not all shown
on the Fourth Am ended Com plaint are on the docket. W ithin the Fourth Am ended Com plaint, under
“Parties,” the plaintiffs identify them selves using fifty-one bullet points, though som e of these bullet points
contain m ore than one nam e. See Docket # 253, at 6–7. For purposes of this m otion, I count each of the
bullet points in the “Parties” section as a plaintiff, totaling fifty-one plaintiffs.

Spray engaged in a pattern of anti-competitive conduct in violation of section 2 of the
Sherman Act, 15 U.S.C. § 2, thereby injuring both B pool and independent growers
(Count II); and (3) that Ocean Spray retaliated against certain plaintiffs in violation of
Massachusetts General Laws chapter 93A, § 11 (Count III). Docket # 253, at 21–26.
Ocean Spray moves for summary judgment on Counts I and II. Docket # 254. A
number of plaintiffs move for partial summary judgment on Count I. Docket # 260.
Ocean Spray moves to defer or deny plaintiffs’ Motion for Partial Summary Judgment.
Docket # 268.
I.

Background
As relevant to the instant motions, the cranberry industry is composed of three

groups: growers, handlers, and consumers. Growers produce raw cranberries.
Handlers process raw cranberries into consumer products (such as juice and
sweetened dried cranberries) and commodity ingredients (such as cranberry
concentrate or frozen cranberries). They then sell the resulting products. Consumers
are either households or food processing companies.
Ocean Spray, a cooperative comprised of more than 700 grower members,2 is
the largest cranberry handler in North America. It sells both branded cranberry
products, including Craisins® and Ocean Spray beverages, and unbranded commodity
ingredients, including cranberry concentrate. The Ocean Spray cooperative divides

2

Plaintiffs contend that Ocean Spray should not be considered an agricultural cooperative
because it does not attem pt to m axim ize returns for all of its m em bers. See Docket # 283, at 2. Rather,
plaintiffs m aintain that Ocean Spray is a “Consum er Products Com pany.” Id. Because Ocean Spray has
cooperative m arketing agreem ents with its growers, under which growers deliver fruit and Ocean Spray
agrees to m arket 100% of the fruit, I refer to Ocean Spray as a cooperative, regardless of whether Ocean
Spray does indeed try to m axim ize profits for all of its m em bers. Further, Ocean Spray m aintains it is a
qualified cooperative under Subchapter T of the Internal Revenue Code.

2

growers into two “pools”: the A Pool and B Pool. Both pools deliver raw cranberries to
Ocean Spray. A Pool growers deliver fruit that is largely used for Ocean Spray’s
branded products for which they receive a share of the net proceeds arising from these
products; B Pool growers deliver cranberries and then receive a share of Ocean
Spray’s net proceeds from its resulting unbranded commodity ingredients.
Growers outside of the Ocean Spray cooperative (“independent growers”) deliver
cranberries to “independent handlers.” These handlers generally purchase the
cranberries from the growers for a specific price, though the price may not be agreed at
the time the growers deliver the fruit. One independent handler, Cranberries Limited,
Inc. (“CLI”), has a Toll Processing Agreement (“TPA”) with Ocean Spray. Under the
TPA, Ocean Spray processes CLI’s cranberries into concentrate at an Ocean Spray
facility for a fee. Ocean Spray then returns the concentrate to CLI who markets it. The
TPA provides that Ocean Spray will buy back whatever concentrate CLI cannot sell.
Beginning in 2009, Ocean Spray began selling concentrate through auctions. At
these auctions, Ocean Spray offers a fixed amount of concentrate at a given price, and
buyers submit bids for a given volume at that price. If the total volume of concentrate
bids exceed the volume offered at the auction, the auctioneer raises the price, and the
buyers submit new bids. This process continues until the aggregate volume of the bids
is less than or equal to the volume of concentrate offered at the auction. At this point,
each buyer purchases its bid volume at the auction’s closing price.
On October 27, 2012, “John Doe Growers 1–7” and “John Doe B Pool Grower 1”
filed a putative class action with seven counts against Ocean Spray. Docket # 1. The

3

procedural history of the case since then is lengthy and involved. To summarize,
plaintiffs amended their complaint a number of times, adding, inter alia, named plaintiffs
and additional counts. See Docket ## 28, 29, 34, 44. Ocean Spray moved to dismiss
all counts, Docket # 47, a motion I allowed in part and denied in part, Docket # 78.
Subsequently, plaintiffs sought partial summary judgment on two of the remaining
counts, Docket # 102, and Ocean Spray moved for summary judgment on all remaining
counts, Docket # 115. I denied plaintiffs’ motion, and I allowed Ocean Spray’s motion
in part and denied it in part, allowing three of plaintiffs’ claims to go forward. Docket #
143.
Plaintiffs moved to certify a proposed class of “[a]ll domestic independent
cranberry farmers and all B-Pool members of Ocean Spray who received payment
during the period August 2009 to the present for cranberries delivered to a handler for
the purpose of processing the cranberries into concentrate.” Docket # 195. I denied
their motion on May 10, 2016. Docket # 222. Following the denial of class certification,
plaintiffs further amended their complaint, ultimately resulting in the current Fourth
Amended Complaint. Docket # 253.
II.

Standard
Summary judgment is appropriate when the moving party “shows that there is no

genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). “An issue is ‘genuine’ for purposes of summary
judgment if ‘the evidence is such that a reasonable jury could return a verdict for the
nonmoving party,’ and a ‘material fact’ is one which ‘might affect the outcome of the suit
under the governing law.’” Poulis-Minott v. Smith, 388 F.3d 354, 363 (1st Cir. 2004)
4

(quoting Hayes v. Douglas Dynamics, Inc., 8 F.3d 88, 90 (1st Cir. 1993)).
“Cross-motions for summary judgment do not alter the basic Rule 56 standard,
but rather simply require us to determine whether either of the parties deserves
judgment as a matter of law on facts that are not disputed.” Ferguson v. Gen. Star
Indem. Co., 582 F. Supp. 2d 91, 98 (D. Mass. 2008) (quoting Adria Int’l Grp., Inc. v.
Ferré Dev., Inc., 241 F.3d 103, 107 (1st Cir. 2001)). “When facing cross-motions for
summary judgment, a court must rule on each motion independently, deciding in each
instance whether the moving party has met its burden under Rule 56.” Id. (quoting Dan
Barclay, Inc. v. Stewart & Stevenson Servs., Inc., 761 F. Supp. 194, 197–98 (D. Mass.
1991)).
III.

Ocean Spray’s Motion for Summary Judgment
Ocean Spray moves for summary judgment on Counts I and II of plaintiffs’ Fourth

Amended Complaint. I begin with Count II, the federal claim in this case.
A.

Count II – Violation of the Sherman Act, 15 U.S.C. § 2

In Count II, plaintiffs allege Ocean Spray violated section 2 of the Sherman Act,
15 U.S.C. § 2, by attempting “to monopsonize the relevant cranberry market by fixing the
prices of fresh and processed cranberries to harm the Plaintiffs.” Docket # 253, at ¶ 73.3
They claim Ocean Spray began engaging in “anticompetitive schemes in 2009,” when it
started the auction. Id. at ¶ 34; see also id. at ¶ 59. At the first auction, plaintiffs
maintain, Ocean Spray set the opening price “at a level significantly lower than the price

3

As explained in m y 2015 Mem orandum of Decision, m onopsonization describes
consolidation of a m arket into one buyer, and like m onopolization, is a violation of section 2 of the
Sherm an Act. Docket # 143, at 8.

5

for cranberry juice concentrate that existed at that time in the unrestrained market.” Id.
at ¶ 64; see also Docket # 44-2, at 38. Ocean Spray then set the opening bid at the next
auction lower than the final bid from the previous auction. Docket # 253, at ¶ 65.4
Plaintiffs allege that through this auction, Ocean Spray “creates an artificially low
market price” for cranberry juice concentrate. Id. at ¶ 56. This is because, plaintiffs
claim, the auction “sets the price for cranberry juice concentrate for the industry.” Id. at
¶ 63. Accordingly, by setting a low concentrate price at the auction, Ocean Spray
“unlawfully suppress[es] the market price of cranberries grown both by independent
growers and by Ocean Spray’s own ‘B Pool’ of cranberry growers.” Id. at 3. Plaintiffs
maintain that Ocean Spray “creat[ed] a second-class membership within the
cooperative, the ‘B Pool,’ and discriminat[ed] against them by returning a lower value for
their fruit than that received by the dominant and controlling members of the
cooperative, the ‘A Pool.’” Id. at 4.5
As to the motivation for such a scheme, plaintiffs claim that Ocean Spray
engaged in these “activities in order (1) to prevent its grower members from leaving
Ocean Spray’s cooperative in search of a fairer price for their crop; and (2) to force
independent growers either to go out of business or to become members of Ocean
Spray’s cooperative.” Id. at 3. Specifically, plaintiffs maintain that “[t]his price-fixing has

4

Plaintiffs also allege that prior to each auction, Ocean Spray requires bidders to subm it an
application that includes the am ount of concentrate sought. Ocean Spray then tells the individual bidders
on how m uch concentrate they are allowed to bid. After the auction closes, plaintiffs claim , Ocean Spray
sells bidders additional concentrate.
5

In their com plaint, plaintiffs allege that “[t]he Board is dom inated by A Pool growers —
eight of the thirteen m em ber-directors have exclusively A Pool acreage. The five rem aining
m em ber-directors have acres in the A Pool and the B Pool and all have a sizable m ajority in the A Pool.”
Docket # 253, at ¶ 30.

6

solidified the Defendant’s market dominance, discouraging the ‘B Pool’ growers from
leaving the cooperative, and leaving independent growers with no choice but to either
exit the cranberry market altogether or to join Ocean Spray at a significant financial
disadvantage as members of its disfavored and underpaid ‘B Pool.’” Id. at 5. This
ultimately benefits the A pool, plaintiffs say, because the “low price, for predominately all
growers outside of the A Pool, creates a desire to return to or be part of the A Pool,”
which in turn, “enhances the amount of fruit available to Ocean Spray branded products
and creates a monopsony power as Ocean Spray is the exceedingly dominant handler.”
Id. at ¶ 56. Further, when independent growers leave the market, plaintiffs allege, A
pool members can “purchase the independent growers’ cranberry bogs at prices far
below the value that would have existed in the absence of Defendant’s illegal tactics.”
Id. at ¶ 37. Plaintiffs also suggest that the auction allows Ocean Spray “to obtain
additional supplies of cranberries at artificially depressed prices.” Docket # 281, at 6;
see also Docket # 253, at ¶ 48; Docket # 278, at 12.
Plaintiffs bring their claim for damages under section four of the Clayton Act,
which allows “any person who shall be injured in his business or property by reason of
anything forbidden in the antitrust laws” to bring suit. See 15 U.S.C. § 15(a). Ocean
Spray moves for summary judgment on the basis that plaintiffs lack standing to bring an
antitrust claim.6 Plaintiffs include B pool growers, non-CLI independent growers, and

6

Ocean Spray has previously m oved for sum m ary judgm ent on this basis, see Docket #
115, and I denied its m otion with respect to plaintiffs’ m onopsonization count, Docket # 143, at 13. Ocean
Spray m aintains that “[s]ince that tim e, the parties have undertaken discovery that establishes, beyond
dispute, that [plaintiffs’] allegations are not true.” Docket # 255, at 9. In addition, Ocean Spray relies on
recent case law from the Second Circuit, which Ocean Spray claim s “m akes clear that plaintiffs here lack
antitrust injury in addition to alleging injuries that are too rem ote.” Id. at 9–10.
Ocean Spray also m oves for sum m ary judgm ent on the basis that “as a m atter of

7

CLI growers. I discuss each group’s standing separately.7
1.

The B Pool Growers

“Despite the broad language of § 4, the Supreme Court has held that § 4 of the
Clayton Act does not ‘allow every person tangentially affected by an antitrust violation to
maintain an action to recover threefold damages for the injury to his business or
property.’” Serpa Corp. v. McWane, Inc., 199 F.3d 6, 9 (1st Cir. 1999) (quoting Blue
Shield of Va. v. McCready, 457 U.S. 465, 477 (1982)). “Instead, the Court has created a
comprehensive antitrust standing doctrine to determine which persons are entitled to
bring suit under the federal antitrust statutes.” Id. at 10. Accordingly, to bring a claim
under the Clayton Act, a plaintiff must establish not only harm but also that he or she “is
a proper party to bring a private antitrust action.” Associated Gen. Contractors of Cal.,
Inc. v. Cal. State Council of Carpenters (“AGC”), 459 U.S. 519, 535 n.31 (1983); see
also SAS of P.R., Inc. v. P.R. Tel. Co., 48 F.3d 39, 43 (1st Cir. 1995) (“[E]ven where a
violation exists and a plaintiff has been damaged by it, the courts — for reasons of
prudence — have sought to limit the right of private parties to sue for damages or
injunctions.”).

econom ic reality,” it cannot be a m onopsonist because it is not a “buyer” of cranberries but rather gives
the growers proceeds from the products it sells. Docket # 255, at 22–23. Here, the nature of the alleged
conspiracy is that Ocean Spray allegedly artificially depressed concentrate prices at least in part to
generate lower returns for B pool growers. That is, it allegedly functioned as a purchaser of cranberries,
com pensating growers using the proceeds from the auction. W hether plaintiffs will ultim ately prevail on
their theory at trial, absent case law to support Ocean Spray’s contention, Ocean Spray is not entitled to
sum m ary judgm ent on this issue.
7

At the July 13, 2017, hearing, Ocean Spray m aintained that there were no B pool growers
left in the case, notwithstanding that plaintiffs’ Fourth Am ended Com plaint includes two B pool growers as
plaintiffs. Ocean Spray has provided no evidence that these plaintiffs are not B pool growers or
explanation of why their claim s are no longer relevant. Accordingly, I analyze whether these B pool
growers have standing.

8

When determining “whether a plaintiff has standing to bring an antitrust action,”
Serpa, 199 F.3d at 10, courts consider six factors set forth in AGC:
(1) the causal connection between the alleged antitrust violation and harm
to the plaintiff; (2) an improper motive; (3) the nature of the plaintiff's
alleged injury and whether the injury was of a type that Congress sought to
redress with the antitrust laws (“antitrust injury”); (4) the directness with
which the alleged market restraint caused the asserted injury; (5) the
speculative nature of the damages; and (6) the risk of duplicative recovery
or complex apportionment of damages.
Id. (citing AGC, 459 U.S. at 537–45). I begin with the third factor, “antitrust injury,” as
“[t]he existence of antitrust injury is a central factor in the standing calculus,” Sullivan v.
Tagliabue, 25 F.3d 43, 47 (1st Cir. 1994); see also Cargill, Inc. v. Monfort of Colo., Inc.,
479 U.S. 104, 110 n.5 (1986) (noting that “[a] showing of antitrust injury is necessary,
but not always sufficient, to establish standing under § 4”).
“Antitrust injury is ‘injury of the type the antitrust laws were intended to prevent
and that flows from that which makes defendants’ acts unlawful.” Sterling Merch., Inc. v.
Nestlé, S.A., 656 F.3d 112, 121 (1st Cir. 2011) (quoting Brunswick Corp. v. Pueblo BowlO-Mat, Inc., 429 U.S. 477, 489 (1977)). “The harm ‘should reflect the anticompetitive
effect either of the violation or of anticompetitive acts made possible by the violation.’”
Serpa, 199 F.3d at 10 (quoting Brunswick, 429 U.S. at 489).
Ocean Spray maintains that plaintiffs cannot establish an antitrust injury as a
matter of law because they are not participants in the market where the alleged
manipulation occurred. Specifically, Ocean Spray argues that plaintiffs complain that the
manipulation occurred in the handler–consumer concentrate market through the auction,
while plaintiffs’ alleged injury occurred in the grower–handler market. Accordingly,
Ocean Spray claims that any injury plaintiffs suffer “is merely ‘collateral damage’ flowing
9

out of alleged anticompetitive conduct in a market in which plaintiffs do not participate.”
Docket # 255, at 13.
To be clear, as I explained in my 2015 decision, the relevant claim here is one for
monopsonization, the consolidation of a market into one buyer. See Docket # 143, at 8,
11 n.7. The claim is that Ocean Spray, as a “buyer,”8 fixed the price of fruit below the
market price and below the growers’ cost of production. See Docket # 253, at ¶ 24.
This is a distinct claim from plaintiffs’ monopolization claim: that Ocean Spray — as a
handler or seller — fixed the price of concentrate. I allowed Ocean Spray’s motion for
summary judgment on the monopolization claim in 2015; it is no longer before me. For
purposes of plaintiffs’ monopsonization claim, suppliers (such as the B pool growers)
walk in the same shoes as customers in a traditional monopolistic market. Docket #
143, at 11. And consumers in the monopolistic market are among the
“presumptively . . . proper plaintiffs to allege antitrust injury.” Serpa, 199 F.3d at 10.
Therefore, at least the B pool growers, as suppliers, would presumptively have standing
to pursue their monopsony claim. Ocean Spray’s assertion seems to be that because
the amount of proceeds it gives its growers is directly tied to the auction price for
concentrate, and the auction takes place in a different market, the growers should not
have standing. I find this argument unpersuasive.
In Blue Shield of Virginia v. McCready, the Supreme Court addressed the
argument that a plaintiff should not have standing when “she was not an economic actor
in the market that had been restrained.” 457 U.S. at 479. There, the plaintiff received

8

See supra note 6.

10

health care coverage under a Blue Shield of Virginia (“Blue Shield”) health plan. Id. at
467–68. The plan reimbursed subscribers for psychotherapy that was administered by a
psychiatrist, but it did not provide reimbursement when such treatment was provided by
a psychologist unless the therapy “was supervised by and billed through a physician.”
Id. at 468. The plaintiff, who had been treated by a psychologist and whose claims were
routinely denied, brought a class action against Blue Shield and the Neuropsychiatric
Society of Virginia, Inc., alleging they had engaged in a conspiracy to exclude
psychologists from receiving compensation under the health plan. Id. at 468–70.
The defendants in McCready claimed that the relevant market was “the market in
group health care plans,” and as such, standing should be “limited to participants in that
market — that is, to entities, such as [the plaintiff]’s employer, who were purchasers of
group health plans, but not to [the plaintiff] as a beneficiary of the Blue Shield plan.” Id.
at 479–80. The Supreme Court rejected this argument. It explained that the plaintiff did
“not allege a restraint in the market for group health plans.” Id. at 480. Rather, the
Court said, the plaintiff’s “claim of injury is premised on a concerted refusal to reimburse
under a plan that was, in fact, purchased and retained by her employer for her benefit,
and that as a matter of contract construction and state law permitted reimbursement for
the services of psychologists without any significant variation in the structure of the
contractual relationship between her employer and Blue Shield.” Id. With regard to the
contention that the plaintiff’s injury did “not reflect the ‘anticompetitive’ effect of the
alleged boycott,” id. at 481, the Court held that the plaintiff’s injury “was inextricably
intertwined with the injury the conspirators sought to inflict on psychologists and the
psychotherapy market,” id. at 484. It reasoned that “[i]n light of the [alleged] conspiracy,”
11

the plaintiff’s “injury ‘flows from that which makes defendants’ acts unlawful’ . . . and falls
squarely within the area of congressional concern,” id. at 484 (quoting Brunswick, 429
U.S. at 489).
The First Circuit has suggested that while McCready “may be an instance in
which standing was extended to a plaintiff who was only derivatively injured,” it “can also
be read as a case in which the plaintiff was a purchaser in the very market directly
distorted by the antitrust violation.” SAS, 48 F.3d at 45–46. Further, the First Circuit
found it “doubtful” that the “inextricably intertwined” language in McCready — “if taken as
[a] physical image — was ever intended as a legal test of standing.” Id. at 46. However,
even employing a narrow reading of McCready, I find that for purposes of avoiding
summary judgment, B pool plaintiffs have established a potential antitrust injury. Insofar
as it relates to their monopsonization claim, plaintiffs appear to be alleging that Ocean
Spray used the auction to fix the returns B pool growers received for their fruit, Docket #
253, at ¶¶ 24(c), 73, at least in part so that growers would want to join (or stay in) the A
pool, id. at ¶ 63; Docket # 281, at 6. Accordingly, for purposes of their monopsonization
claim, the plaintiffs can contend that they participated “in the very market directly
distorted by the antitrust violation,” SAS, 48 F.3d at 46.
Nonetheless, Ocean Spray maintains that because the auction, which is the
means by which it allegedly fixed cranberry prices, occurred in the handler–consumer
market, the growers cannot show antitrust injury in the grower–handler market. It relies
in part on a case from the Second Circuit, In re Aluminum Warehousing Antitrust
Litigation, which held that “to suffer antitrust injury, the putative plaintiff must be a
participant in the very market that is directly restrained,” 833 F.3d 151, 161 (2d Cir.
12

2016). In Aluminum Warehousing, purchasers of fabricated and semi-fabricated
aluminum alleged that aluminum traders and their warehouse operator affiliates
conspired to cause an artificial increase in the cost of storing aluminum in London Metal
Exchange (“LME”) Warehouses. Id. at 155. The increase in storage cost caused the
price plaintiffs paid for aluminum to increase as well. Id. at 156. The Second Circuit
held that the commercial and consumer end users of aluminum did not have standing
because, inter alia, they did not participate in the allegedly restrained LME-warehouse
storage market. Id. at 162. Rather, the Second Circuit explained, “the injury [the
plaintiffs] claim was suffered down the distribution chain of a separate market, and was
a purely incidental byproduct of the alleged scheme.” Id.9
I have doubts as to whether Aluminum Warehousing would necessarily resolve
the instant inquiry in Ocean Spray’s favor. In Aluminum Warehousing, the Second
Circuit explained that the defendants in McCready “could not achieve their illegal ends . .
. without injuring participants in some other market,” and as such, “[u]nless the market
dynamics force conspirators to corrupt a separate market to achieve their illegal ends,
potential McCready plaintiffs do not arise.” Id. at 163; see also id. at 161 (“[S]ometimes
the defendant will corrupt a separate market in order to achieve its illegal ends, in which
case the injury suffered can be said to be ‘inextricably intertwined’ with the injury of the
ultimate target.”); In re: London Silver Fixing, Ltd., Antitrust Litig., 213 F. Supp. 3d 530,
551 (S.D.N.Y. 2016) (explaining that under Aluminum Warehousing, “plaintiffs in an

9

Relying on this decision and its reasoning, the district court later held that first level
purchasers of alum inum did not suffer an antitrust injury either. In re Alum inum W arehousing Antitrust
Litig., No. 13-m d-2481 (KBF), 2016 W L 5818585, at *1, *8 (S.D.N.Y. Oct. 5, 2016); see also Agfa Corp. v.
Goldm an Sachs Grp., Inc., No. 14-cv-0211 (KBF), 2016 W L 7009031, at *6 (S.D.N.Y. Nov. 30, 2016).

13

affected secondary market may have antitrust standing if their alleged injuries are
‘“inextricably intertwined” with the injury the defendants ultimately sought to inflict’ and if
their injuries are ‘the essential means by which defendants’ illegal conduct brings about
its ultimate injury to the marketplace’” (quoting Aluminum Warehousing, 833 F.3d at
161)).
Here, as discussed, the allegation seems to be that the auction was necessary to
restrain the grower–handler market; the price paid to the B pool is directly tied to the
auction price. Plaintiffs allege, “[t]he auction is a sham; it is nothing more than a guise
for Ocean Spray to predatorily set cranberry prices below the cost of production.”
Docket # 253, at 4. Understood this way, Ocean Spray needed “to corrupt [the
concentrate] market to achieve [its] illegal ends,” Aluminum Warehousing, 833 F.3d at
163. In any event, Aluminum Warehousing is not the law in this circuit, and as such, it
cannot on its own determine the outcome here.
The remaining AGC factors weigh in favor of finding the B pool growers have
standing. They allege harm directly resulting from the lower returns they received, and
the motive for illegally fixing the price, plaintiffs suggest, is to enrich the A pool at the B
pool’s expense. There exist genuine disputes of material fact with regard to these
issues. Further, at least for the B pool, there seems to be little risk for duplicative
recovery or complex apportionment of damages. Therefore, Ocean Spray’s motion for
summary judgment on Count II is DENIED with regard to the B pool growers.
2.

The Non-CLI Independent Growers

The independent grower plaintiffs also allege they suffered harm as a result of the
auction. These growers claim that by manipulating the price of concentrate, Ocean
14

Spray causes independent handlers to pay independent growers prices below the cost
of production for their fruit. The chain of events seems to be that the auction price of
Ocean Spray’s concentrate sets the price at which independent handlers sell their
concentrate. Then, the price at which independent handlers sell their concentrate
determines the price independent handlers pay independent growers for their fruit. See
Docket # 282-14, at 4–8, 13–17; see also Docket # 282-15, at 5–7, 9–21, Docket # 28216, at 4.
Assuming for purposes of this motion, these growers did suffer antitrust injury,
they must still demonstrate that this injury is sufficiently connected to Ocean Spray’s
alleged violation. See AGC, 459 U.S. at 536 (“It is common ground that the judicial
remedy cannot encompass every conceivable harm that can be traced to alleged
wrongdoing.”). Some injuries “are too remote from the violation and the purposes of the
antitrust laws to form the predicate for a suit under § 4,” McCready, 457 U.S. at 477.
Accordingly, I must “evaluate the plaintiff[s’] harm, the alleged wrongdoing by the
defendants, and the relationship between them.” AGC, 459 U.S. at 535. The factors
delineated in AGC guide this task, id. at 537, with the ones most relevant to this case
being the first, fourth, and fifth: the “causal connection between [the] antitrust violation
and harm,” id.; “the directness or indirectness of the asserted injury,” id. at 540; and the
“speculative” nature of the damages claim, id. at 542.
Considering these factors, I conclude that the even if the independent growers’
suffered antitrust injury, they cannot establish antitrust standing. First, the harm they
allege is indirect: Ocean Spray first influences independent handlers, who in turn, lower
the prices they pay independent growers. See AGC, 459 U.S. at 530 n.19 (explaining
15

that even in cases that employed “broad language” in construing § 4 of the Clayton Act,
“the actual plaintiff was directly harmed by the defendants’ unlawful conduct”).10
Further, “[t]he outcome of any attempt to ascertain what price the defendants’
competitors would have [paid each independent grower] had there not been [an auction]
would at the very least be . . . conjectural.” Mid-W. Paper Prods. Co. v. Cont’l Grp., Inc.,
596 F.2d 573, 584 (3d Cir. 1979); cf. McCready, 457 U.S. at 475 n.11 (“If there is a
subordinate theme to our opinions in Hawaii [v. Standard Oil Co. of Cal., 405 U.S. 251
(1972)] and Illinois Brick [Co. v. Illinois, 431 U.S. 720 (1977)], it is that the feasibility and
consequences of implementing particular damages theories may, in certain limited
circumstances, be considered in determining who is entitled to prosecute an action
brought under § 4”).
Plaintiffs acknowledge that the concentrate auction is one of “[a] variety of factors
[that] have influenced the prices that independent handlers have paid independent
growers for cranberries.” Docket # 283, at ¶ 28. This is particularly so for those growers
who sell to handlers that sell products other than concentrate or juice, and thus have
even less of a connection to Ocean Spray’s auction prices. Plaintiffs posit a link

10

Plaintiffs seem to be m aking, albeit obliquely, an argum ent for “a so-called ‘um brella
theory’ of liability,” In re: London Silver Fixing, Ltd., 213 F. Supp. 3d at 554. “Um brella standing concerns
are m ost often evident when a cartel controls only part of a m arket, but a consum er who dealt with a
non-cartel m em ber alleges that he sustained injury by virtue of the cartel’s raising of prices in the m arket
as a whole.” Id. at 554–55 (quoting Gelboim v. Bank of Am . Corp., 823 F.3d 759, 778 (2d Cir. 2016), cert.
denied, 137 S. Ct. 814 (2017)). “The antitrust standing of um brella purchasers under such circum stances
has produced a split in authority am ong” circuit courts, Gelboim , 823 F.3d at 778 (collecting cases), as
well as district courts, see Knevelbaard Dairies v. Kraft Foods, Inc., 232 F.3d 979, 991 n.9 (9th Cir. 2000)
(collecting cases). I need not resolve the issue here because under the facts of this case, such a theory
would not be appropriate for the independent growers. Specifically, given that the independent growers’
theory im plicates transactions in two m arkets, see Docket # 253, at ¶ 42, the challenges in assessing
harm under these circum stances, and the ability of better positioned plaintiffs to bring a claim , I conclude
the independent growers do not have antitrust standing here, whatever the m erits of um brella standing in
other cases.

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between concentrate prices and raw cranberry prices. See Docket # 253, at ¶ 14.
However, even if there is a connection between the two, there is still some flexibility with
regard to grower payments based on sales of other products and rates paid by other
handlers. See Docket # 280-14, at 22.
Finally, under the facts of this case, the B pool growers, and as discussed below,
the CLI growers, having allegedly suffered more direct harm from the auction, would be
better positioned to bring a claim. See AGC, 459 U.S. at 542 (“The existence of an
identifiable class of persons whose self-interest would normally motivate them to
vindicate the public interest in antitrust enforcement diminishes the justification for
allowing a more remote party . . . to perform the office of a private attorney general.”);
Gelboim v. Bank of Am. Corp., 823 F.3d 759, 779 (2d Cir. 2016), cert. denied, 137 S. Ct.
814 (2017) (“Implicit in the inquiry is recognition that not every victim of an antitrust
violation needs to be compensated under the antitrust laws in order for the antitrust laws
to be efficiently enforced.”). These factors lead to the conclusion that the independent
growers are not the “proper party to bring a private antitrust action,” AGC, 459 U.S. at
535 n.31, and as such they do not have antitrust standing.11 Ocean Spray’s motion for
summary judgment on Count II is ALLOWED with respect to the non-CLI independent
growers.
3.

The CLI Growers

The CLI growers are a specific subset of independent growers, who in some ways

11

In m y 2015 decision, I held that these plaintiffs were “well situated to pursue this antitrust
claim .” Docket # 143, at 12. Since that tim e, however, the discovery produced, taken m ost favorably to
plaintiffs, has shown that as a m atter of law, these plaintiffs do not have antitrust standing.

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are similarly positioned, yet in others are quite distinct. Specifically, under the TPA,
Ocean Spray processes CLI’s fruit into concentrate and returns it to CLI (a handler).
Ocean Spray is then obligated to purchase concentrate that CLI is unable to sell.
At least one CLI-grower plaintiff has a Crop Purchase Agreement with CLI under
which the grower “sell[s] and deliver[s] to CLI 100% of the cranberries grown by or for
the Grower from the cranberry-producing acreage described [in the agreement], . . .
except that Grower may retain for its use or sale to third parties up to but no more than
500 Barrels . . . curing [sic] any crop year.” Docket # 256-33, at 2. In this agreement,
the price the CLI grower receives for its fruit is “the weighted average price per gallon
paid by Ocean Spray to CLI during the preceding month for concentrate purchased by
Ocean Spray under the Tolling Agreement multiplied by 1.66” minus the processing fee
CLI pays to Ocean Spray. Id. Ocean Spray disputes whether all CLI growers have
identical agreements. See Docket # 285, at 12.
The CLI grower plaintiffs maintain that Ocean Spray, as a purchaser of CLI
concentrate, harms them because the price Ocean Spray pays CLI for concentrate is
essentially the artificially depressed auction price, which then determines the price the
growers receive. They further contend there is evidence suggesting Ocean Spray
purchases not only concentrate but also raw fruit from CLI. See, e.g., Docket # 280-2.
Regardless of the likelihood of the success of the CLI plaintiffs, as indirect sellers to
Ocean Spray on their monopsony claim at trial, there is at least enough in the record to
create a genuine issue of material fact as to prevent summary judgment for Ocean
Spray. See, e.g., Docket # 267-38, at 148–49, Docket # 280-1, at 6.
Ocean Spray contends that the CLI grower plaintiffs’ claims are barred by Illinois
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Brick because these plaintiffs do not sell directly to Ocean Spray. See Ill. Brick, 431
U.S. at 730–36 (holding that indirect purchasers generally do not have antitrust
standing); Zinser v. Cont’l Grain Co., 660 F.2d 754, 760–61 (10th Cir. 1981) (applying
Illinois Brick to indirect sellers). I explained why Illinois Brick did not apply to the
independent growers in my 2015 decision, see Docket # 143, at 12–13, and Ocean
Spray offers no explanation of what evidence has been produced since then such that I
should change my decision. I add only that the evidence at this stage creates at least
an issue of fact as to whether, if Illinois Brick applied, these growers would fall under the
exception for “a pre-existing cost-plus contract,” Ill. Brick, 431 U.S. at 736. The
Supreme Court explained, “[i]n such a situation, the purchaser is insulated from any
decrease in its sales as a result of attempting to pass on the overcharge, because its
customer is committed to buying a fixed quantity regardless of price. The effect of the
overcharge is essentially determined in advance, without reference to the interaction of
supply and demand that complicates the determination in the general case.” Id.; cf. In re
Beef Indus. Antitrust Litig., MDL Docket No. 248, 600 F.2d 1148, 1163–5 (5th Cir. 1979)
(applying this exception in a case with indirect sellers).
Here, there is evidence suggesting that at least one CLI grower sells nearly 100%
of its fruit to CLI, and Ocean Spray commits to buying any excess concentrate from CLI.
Further, the price CLI pays for the cranberries is directly determined by the price it
receives from Ocean Spray. Thus, there is at least an issue of material fact as to
whether “the direct [seller] will bear no portion of the [under]charge and otherwise suffer
no injury,” Kansas v. UtiliCorp United Inc., 497 U.S. 199, 218 (1990). Ocean Spray’s
motion for summary judgment on Count II is DENIED with respect to the CLI plaintiffs.
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B.

Count I – Massachusetts General Laws chapter 93A, § 11

In Count I, the independent growers allege that Ocean Spray’s actions constitute
unfair and deceptive acts in violation of Massachusetts General Laws chapter 93A, § 11.
Ocean Spray moves for summary judgment on the basis that the independent growers
are not in a business relationship with Ocean Spray and that the non-Massachusetts
plaintiffs lack a sufficient connection to Massachusetts.
Ocean Spray previously sought summary judgment on the 93A count. See
Docket # 128, at 16–24. In my 2015 decision, I rejected its arguments and denied
summary judgment with respect to the 93A claims. See Docket # 143, at 16–19, 23. I
explained that plaintiffs pleaded their 93A claim broadly, alleging numerous facts in
support. Docket # 143, at 16–17. Ocean Spray makes no argument as to how the
evidence since my 2015 decision has changed such that I should reconsider it.
Accordingly, Ocean Spray’s motion for summary judgment on Count I is denied —
with one qualification. In light of the allowance of summary judgment on Count II with
respect to the non-CLI independent growers, these growers can no longer bring a 93A
claim based on antitrust violations.
For antitrust claims brought under Chapter 93A, § 11, “the court shall . . . be
guided in its interpretation of unfair methods of competition by those provisions of
chapter ninety-three known as the Massachusetts Antitrust Act.” Mass. Gen. Laws ch.
93A, § 11. And the Massachusetts Antitrust Act provides that it “shall be construed in
harmony with judicial interpretations of comparable federal antitrust statutes insofar as
practicable.” Mass Gen. Laws ch. 93, § 1. As the foregoing analysis of standing under

20

federal law demonstrates, the independent growers do not have standing to bring an
antitrust claim. Construing the Massachusetts Antitrust Act harmoniously with federal
antitrust law would dictate that these plaintiffs lack standing under Massachusetts
antitrust law as well, and so they cannot bring a § 11 claim that is premised on an
antitrust violation. Cf. Ciardi v. F. Hoffmann-La Roche, Ltd., 762 N.E.2d 303, 311–12
(Mass. 2002) (implying that because Illinois Brick generally precludes indirect
purchasers from bringing federal antitrust claims, such plaintiffs could not bring a claim
under Chapter 93A, § 11); In re Asacol Antitrust Litig., No. 15-cv-12730-DJC, 2016 WL
4083333, at *13 (D. Mass. July 20, 2016) (concluding that indirect purchaser plaintiffs
cannot bring an antitrust claim under § 11).
Accordingly, summary judgment is ALLOWED on Count I only insofar as the nonCLI independent growers’ 93A claim is based on Ocean Spray’s alleged attempted
monopsonization and monopsonization. As to what remains of the independent
growers’ 93A claim, summary judgment is DENIED.
IV.

Plaintiffs’ Motion for Partial Summary Judgment
CLI growers Charles V. Goldsworthy, Timothy R. Goldsworthy,

ThunderLake-Tomahawk Cranberries, Inc., H.E. Querry, Inc., Timothy R. Goldsworthy
and Charles V. Goldsworthy, Trustees of the Elizabeth Goldsworthy Trust, and Hungry
Run Cranberry, LLC, K&S Cranberries, Kevin Griffin, and Sue Griffin move for partial
summary judgment on their 93A claim.
Plaintiffs previously brought a motion for partial summary judgment, see Docket #
102, which I denied because questions of material fact remained. This included
questions as to the fairness of the auction and any causal connection to plaintiffs’
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harms, Docket # 143, at 21–22. These disputes remain. The CLI plaintiffs’ motion is
DENIED.
V.

Conclusion
Ocean Spray’s Motion for Summary Judgment on Counts I and II of Plaintiffs’

Fourth Amended Complaint (Docket # 254) is ALLOWED IN PART and DENIED IN
PART. Plaintiffs’ Motion for Partial Summary Judgment (Docket # 260) is DENIED, and,
to that extent, Ocean Spray’s Motion to Defer or Deny Plaintiffs’ Motion for Partial
Summary Judgment (Docket # 268) is ALLOWED.
Plaintiffs shall provide an accurate list of the plaintiffs who remain at this juncture
and shall articulate the jurisdictional basis for remaining claims.

October 31, 2017

/s/Rya W. Zobel

DATE

RYA W. ZOBEL
UNITED STATES SENIOR DISTRICT JUDGE

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