Haff Poultry, Inc. et al v. Tyson Foods, Inc. et al

Filing 798

MEMORANDUM DECISION AND ORDER by District Judge Robert J. Shelby granting 454 Plaintiffs' MOTION for Class Certification and denying 456 Defendant's MOTION to Exclude. (Associated Cases: (680) and (682) in 17-cv-33-RJS-CMR; (345) and (347) in 20-cv-478-RJS-CMR; (354) and (356) in 20-cv-479-RJS-CMR; (359) and (361) in 20-cv-480-RJS-CMR; (300) and (302) in 21-cv-33-RJS-CMR) (dma, Deputy Clerk)

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF OKLAHOMA

IN RE: BROILER CHICKEN GROWER
ANTITRUST LITIGATION (NO. II)

No. 6:20-md-02977-RJS-CMR
The Honorable Robert J. Shelby
The Honorable Cecilia M. Romero

MEMORANDUM DECISION AND ORDER GRANTING PLAINTIFFS’ MOTION FOR
CLASS CERTIFICATION AND DENYING DEFENDANT’S MOTION TO EXCLUDE 1
Plaintiffs, individually and on behalf of a class of similarly situated growers of broiler
chickens (Growers), assert an antitrust claim against Defendant Pilgrim’s Pride Corporation
(PPC). Plaintiffs allege PPC, along with 20 other co-conspirator poultry companies
(Integrators), engaged in a nationwide conspiracy to suppress Grower compensation in violation
of Section 1 of the Sherman Antitrust Act, 15 U.S.C. § 1 and Section 202 of the Packers and
Stockyards Act, 7 U.S.C. § 192(a). 2
Now before the court is Plaintiffs’ Motion for Class Certification 3 and PPC’s Motion to
Exclude many of the expert opinions Plaintiffs rely on in their Motion. 4 For the reasons

When citing to the parties’ filings, the court cites to the CM/ECF page number in the CM/ECF heading rather than
the respective document’s page numbers at the bottom of each page.

1

For class certification purposes, the analysis for both claims is substantially the same because § 202 of the Packers
and Stockyards Act “incorporated the basic antitrust blueprint of the Sherman Act and other pre-existing antitrust
legislation.” Been v. O.K. Indus., Inc., 495 F.3d 1217, 1228 (10th Cir. 2007) (quotation and citation omitted). The
parties do not argue any of the analysis differs. As a shorthand, the court will refer only to Plaintiffs’ antitrust claim
for this Order.
2

Dkt. 454, Plaintiffs’ Motion and Memorandum of Law in Support of Motion for Class Certification [SEALED]
(Motion for Class Certification).

3

Dkt. 456, Defendant Pilgrim’s Pride Corporation’s Motion to Exclude Certain Opinions of Plaintiffs’ Expert
Witness Hal J. Singer Pursuant to Federal Rule of Evidence 702 [SEALED] (Motion to Exclude).

4

1

explained below, the court GRANTS Plaintiffs’ Motion for Class Certification and DENIES
PPC’s Motion to Exclude.
I.

BACKGROUND 5
A. Factual Background
1. The Parties
Before poultry reaches a grocery store shelf or a consumer’s plate, the chickens—known

as broilers—move through a production process largely controlled by companies like PPC and
its alleged co-conspirators, known as Integrators. 6 Integrators hatch the chicks, make broiler
feed, deliver chicks and feed to Growers, collect the grown broilers from Growers, and deliver
them to Complexes where the broilers are processed before the meat is sold. 7 PPC operates
twenty-six Complexes throughout the United States and is the second largest Integrator in the
country, accounting for more than 20% of broilers sold. 8 Collectively, PPC and its alleged coconspirators account for 98% of nationwide broiler production, with 60% of that production
concentrated amongst the top five Integrators. 9
Plaintiffs are, or were, Growers providing broiler grow-out services during the proposed
class period. 10 Haff Poultry, Inc. was an Oklahoma-based Grower for Tyson, a major Integrator
and alleged co-conspirator, until October 2015 when it quit providing broiler grow-out

5
Because this matter is before the court on a motion to certify a class, the court accepts as true all well-pleaded
factual allegations contained in the complaint. See Shook v. El Paso Cnty., 386 F.3d 963, 968 (10th Cir. 2004)
(citations omitted). For purposes of this background, the court draws from factual allegations in Plaintiffs’
Complaint and its Motion for Class Certification.
6

Motion for Class Certification at 8.

7

Id.

8

Dkt. 59, Consolidated Class Action Complaint (Complaint) ¶ 18.

9

Motion for Class Certification at 8.

10

Id.; Complaint ¶¶ 5–11.

2

services. 11 Nancy Butler is a Kentucky-based Grower for Integrator and alleged co-conspirator
Perdue during the proposed class period. 12 Johnny Upchurch provided broiler grow-out services
for Integrator and alleged co-conspirator Koch in Alabama until December 2014, when he left
the industry. 13 Jonathan Walters was a Grower for Integrator and alleged co-conspirator
Sanderson in Mississippi until he stopped providing broiler grow-out services in December
2015. 14 Myles B. Weaver and Melissa Weaver provided broiler grow-out services for PPC in
West Virginia until 2019. 15 Marc McEntire and Karen McEntire were Texas-based Growers for
PPC until in they left the industry in 2014. 16 Finally, Mitchell Mason was a Grower in Alabama
for Integrator and alleged co-conspirator Wayne Farms until he left the industry in 2014. 17
2. Market for Broiler Grow-Out Services
Broiler production is “concentrated into localized networks of production,” 18 with each
step of the process revolving around a particular Integrator Complex. Broiler grow-out services
are the only step in the chicken production process not performed by Integrators. 19 Instead,
Integrators contract with Growers who provide the land, facilities, equipment, utilities, and labor
required to raise broilers until they reach the desired slaughtering age and weight. 20 Integrators

11

Complaint ¶ 5.

12

Id. ¶ 6.

13

Id. ¶ 7.

14

Id. ¶ 8.

15

Id. ¶ 9.

16

Id. ¶ 10.

17

Id. ¶ 11.

18

Id. ¶ 45.

19

Motion for Class Certification at 8.

20

Id.

3

establish precise specifications for a Grower’s grow-out house and provide all of the inputs
necessary for the Grower to raise the broilers until they are ready for processing. 21
Integrators contract with Growers through “take-it-or-leave-it” standard form contracts
that are largely similar across Integrators. 22 The contracts include “nearly identical terms
governing Integrator control and Grower compensation.” 23 Due in part to each Integrator’s
unique grow-house specifications, Integrators require Growers provide broiler grow-out services
for only one Integrator. 24 Integrators do not negotiate the terms or compensation of individual
Grower contracts. 25 Every Grower within a Complex has the same contract as other Growers
servicing the Complex, with the only distinction being Growers whose grow-houses meet higher
technological specifications are paid at a higher rate. 26 The contract sets forth a Grower’s base
pay and typically includes additional pay to compensate for fuel, utilities, and other inputs
required to raise broilers. 27 Any adjustments Integrators make to pay within a Complex is
reflected in each of the contracts available to the Growers in the Complex. 28
Although base pay is established in the Grower’s contract, Integrators determine a
Grower’s final pay for a flock of broilers through a so-called “tournament system.” 29 Growers
raise a flock of broilers for approximately seven weeks. 30 At the end of the grow cycle, a

21

Complaint ¶¶ 54–56.

22

Motion for Class Certification at 8; Complaint ¶ 57.

23

Complaint ¶ 57.

24

Id. ¶ 58.

25

Motion for Class Certification at 12.

26

Id.

27

Id.

28

Id.

29

Id. at 12–13.

30

Id.

4

Grower “settles” the flock by delivering it to the Integrator’s Complex where the broilers are
weighed. 31 The respective Integrator then compares all Growers settling within a given Complex
in the same week. 32 Growers are ranked based on how efficiently they raised their broilers—a
function of the pounds of live broilers delivered compared to the pounds of feed utilized through
the grow-out process. 33 Growers with a higher “feed conversion” ratio receive a bonus above the
designated base pay while lower performing Growers have their base pay discounted, with the
total average compensation across the group equaling base pay. 34
According to Plaintiffs, in an efficient market for broiler grow-out services, Integrators,
regardless of geographic region, would compete for Growers. 35 This competition could manifest
in a variety of ways. For example, Integrators located in the same area could attempt to
incentivize high-performing Growers to switch from one Integrator to another. Integrators could
move into new locations and incentivize established Growers to switch Integrators. 36 Or,
Integrators could incentivize new Growers to move to areas where Integrators have existing
Complexes. 37 Regardless, the competition between Integrators for Growers would generate
upward pressure on Grower base pay.

31

Id.

32

Id.; Complaint ¶ 147.

33

Motion for Class Certification at 13.

34

Id. at 12–13; Complaint ¶¶ 147–48.

35

Complaint ¶ 135.

36

Id.

37

Id.

5

3. The Alleged Conspiracy
Since at least 2008, PPC and its co-conspirator Integrators allegedly engaged in a
nationwide conspiracy to suppress Grower pay to artificially low levels. 38 According to
Plaintiffs, to reduce competition for Growers and prevent a price war between Integrators, PPC
and its co-conspirators participated in the so-called “Overarching Agreement.” 39 The
Overarching Agreement was comprised of two “mutually reinforcing” sub-agreements: (1) the
No-Poach Agreement (NPA) and (2) the Information Sharing Agreement (ISA). 40
The NPA was an industrywide agreement between PPC and other Integrators to refrain
from poaching, soliciting, or recruiting Growers from one another. 41 Integrators varyingly
referred to the NPA as a “no cold call” agreement, a “gentlemen’s agreement,” or a prohibition
on “direct” or “active” recruitment of one another’s Growers. 42 As a result of the NPA,
Plaintiffs allege Growers rarely switched between Integrators, and Integrators were discouraged
from moving into areas with an existing Integrator because they could not recruit established
Growers. 43 In the limited instances in which Growers did switch Integrators, it was typically not
to obtain better contract terms but rather as a result of changes in company ownership or because
the Grower was terminated by their previous Integrator. 44 Without the risk of a competitor

38

Id. ¶¶ 1–4; Motion for Class Certification at 8.

39

Motion for Class Certification at 8, 13.

40

Id. at 8.

41

Complaint ¶ 79.

42

Motion for Class Certification at 6–7.

43

Complaint ¶ 85, 141.

44

Id. ¶ 85.

6

poaching an Integrator’s Growers by offering higher compensation, the effect of the NPA,
according to Plaintiffs, was to artificially suppress Grower pay through reduced competition. 45
The NPA was supported and enforced by the ISA, the other component of the
Overarching Agreement. 46 As Plaintiffs allege, under the ISA, PPC and other Integrators
participated in “a nationwide reciprocal exchange of competitively sensitive Grower pay
information . . .” 47 This was executed through direct exchanges of information between
Integrators and indirectly through the use of third-party co-conspirator, Agri Stats. 48 Agri Stats
collects a range of “granular” non-public information from PPC and its co-conspirator
Integrators—including Grower compensation data—which it then disseminates on a weekly
basis to all participating Integrators. 49 Though the data is purportedly anonymized, according to
Plaintiffs, the reports are “so granular and disaggregated” that co-conspirators can identify the
data belonging to each Integrator, the location of specific Complexes, and the base Grower
compensation paid at each Complex. 50 Through the sharing of competitively sensitive
information, co-conspirators are able to monitor the Grower compensation of other Integrators to
ensure rates remain largely similar. 51 In tandem with the NPA, the ISA reduces competition for
Growers and suppresses Grower compensation to artificially low levels.

45

Id. ¶ 141.

46

Motion for Class Certification at 8.

47

Id.

48

Id.

49

Complaint ¶¶ 69–72.

50

Id. ¶¶ 73–74.

51

Id. ¶ 74.

7

According to Plaintiffs, neither the NPA nor the ISA would be economically rational in a
competitive market. 52 These agreements are only coherent in the context of the Overarching
Agreement. In other words, agreements not to recruit high performing Growers and the sharing
of competitively sensitive information by PPC and its co-conspirator Integrators is only
economically rational if the firms are operating as a cartel in a conspiracy to suppress Grower
compensation. 53
B. Procedural Background
On December 17, 2020, the Judicial Panel on Multidistrict Litigation centralized for
pretrial proceedings the five individual member cases 54 comprising this MDL in the Eastern
District of Oklahoma. 55 Plaintiffs filed a Consolidated Class Action Complaint on
February 19, 2021. 56 The Complaint named as Defendants PPC, along with Tyson Foods and
select subsidiaries, Perdue Foods, Koch Foods and select subsidiaries, and Sanderson Farms
along with select subsidiaries. 57 Plaintiffs have since reached class settlement agreements with

52

Motion for Class Certification at 18; Complaint ¶ 76.

53

Motion for Class Certification at 18.

The current Member Cases are 6:17-cv-00033-RJS-CMR, 6:20-cv-00478-RJS-CMR, 6:20-cv-00480-RJS-CMR,
6:20-cv-00479-RJS-CMR, 6:21-cv-0033-RJS-CMR. Additionally, 6:22-mc-00002-RJS-CMR is a related case in
this MDL.
54

Dkt. 1, Transfer Order from the Judicial Panel on Multidistrict Litigation; Dkt. 2, Conditional Transfer Order
from Judicial Panel on Multidistrict Litigation.
55

56

Complaint.

57

Id. ¶¶ 12–25.

8

each Defendant except PPC. 58 For purposes of this Order, the court refers to the original coDefendants as co-conspirators.
On March 28, 2023, Plaintiffs filed a Motion for Class Certification, presently before the
court. 59 Plaintiffs support their bid for class certification with, among other evidence, the expert
report of Dr. Hal J. Singer. 60 On March 29, 2023, PPC filed its present Motion to Exclude
certain of Singer’s opinions under Federal Rule of Evidence 702 and Daubert. 61 The court heard
two days of oral argument on the Motions in July 2023. 62 The Motions are now fully briefed and
ripe for review.
II.

PROPOSED CLASS DEFINITION
Named Plaintiffs seek to certify a nationwide class of Growers who provided broiler

grow-out services for PPC or one of its 20 co-conspirators while those Integrators participated in
the alleged Overarching Agreement. 63 Specifically, Plaintiffs’ Grower class is defined as
follows:
All individuals and entities in the United States and its territories that were
compensated for Broiler Grow-Out Services by a Defendant or Co-Conspirator
(excluding Claxton and Allen Harim), or by a division, subsidiary, predecessor, or
affiliate of a Defendant or Co-Conspirator (excluding Claxton and Allen Harim), at

See Dkt. 144, Order Preliminarily Approving of Settlement with Tyson Defendants, Certifying the Settlement
Class for Purposes of Settlement, and Appointing Settlement Class Counsel; Dkt. 145, Order Preliminarily
Approving Settlement with Perdue, Certifying the Settlement Class for Purposes of Settlement, and Appointing
Settlement Class Counsel; Dkt. 367, Order Preliminarily Approving Settlement with Koch, Certifying the Settlement
Class for Purposes of Settlement, and Appointing Settlement Class Counsel; Dkt. 482, Order Preliminarily
Approving Settlement with Sanderson, Certifying the Settlement Class for Purposes of Settlement, and Appointing
Settlement Class Counsel.

58

59

Motion for Class Certification.

60

Dkt. 454-1, Exhibit 1: Expert Report of Hal J. Singer, PH.D. (Singer Report).

61

Motion to Exclude.

Dkt. 523, Minutes of Proceedings-Motion hearing held on July 13, 2023; Dkt. 524, Minutes of ProceedingsMotion hearing held on July 14, 2023.
62

63

Motion for Class Certification at 8–9.

9

any time during the period of January 27, 2013 through and including December
31, 2019 (“Class Period”). 64
The proposed class includes 24,354 Growers who raised at least one flock of broilers for
either PPC or one of PPC’s co-conspirators during the class period. 65
III.

LEGAL STANDARD
Class actions are governed by Rule 23 of the Federal Rules of Civil Procedure. 66 To

certify a proposed class, Plaintiffs must first demonstrate the class satisfies all four requirements
of Rule 23(a)—numerosity, commonality, typicality, and adequacy of representation—and then
establish the standards are met for at least one subsection of 23(b). 67 Plaintiffs here seek
certification of a damages class pursuant to Rule 23(b)(3). 68 Certification under Rule 23(b)(3)
requires a party demonstrate “questions of law or fact common to class members predominate
over any questions affecting only individual members, and that a class action is superior to other
available methods for fairly and efficiently adjudicating the controversy.” 69
Rule 23 “does not set forth a mere pleading standard.” 70 Rather, “[a] party seeking class
certification must affirmatively demonstrate his compliance with the Rule.” 71 “[T]he party
seeking class certification must prove the requirements ‘are in fact’ satisfied.” 72 As the party

64

Id.

65

Id. at 12.

Fed. R. Civ. P. 23; see also Shook, 386 F.3d at 971 (“In determining the propriety of a class action, the question is
not whether the plaintiff or plaintiffs have stated a cause of action or will prevail on the merits, but rather whether
the requirements of Rule 23 are met.”) (citation omitted).

66

67

See Fed. R. Civ. P. 23(a)–(b).

68

Motion for Class Certification at 9.

69

Fed. R. Civ. P. 23(b)(3).

70
Brayman v. KeyPoint Gov. Sols., Inc., 83 F.4th 823, 837 (10th Cir. 2023) (quoting Wal-Mart Stores, Inc. v. Dukes,
564 U.S. 338, 350 (2011)).
71

Dukes, 564 U.S. at 350.

Black v. Occidental Petroleum Corp., 69 F. 4th 1161, 1174 (10th Cir. 2023) (quoting Dukes, 564 U.S. at 350)
(emphasis in original).

72

10

seeking certification here, Plaintiffs carry the burden of “affirmatively demonstrat[ing] [their]
compliance with Rule 23.” 73
In evaluating whether a party has met its burden, the court conducts “a rigorous analysis,
often necessarily ‘prob[ing] behind the pleadings.” 74 The analysis typically requires some
consideration of the merits, but this inquiry is limited to the extent it is “relevant to determining
whether the Rule 23 prerequisites for class certification are satisfied.” 75 At this stage, the court
“must generally accept the substantive, non-conclusory allegations of the complaint as true.” 76
However, this does not mean the court may “relax or shift the burden of proof to liberally
construe Rule 23’s requirements or resolve doubts in favor of certification.” 77
In addition to Plaintiffs’ Motion, the court has before it PPC’s Motion to Exclude certain
opinions of Dr. Hal J. Singer, 78 the expert witness Plaintiffs rely upon in seeking class
certification. PPC’s Motion is made pursuant to Rule 702 of the Federal Rules of Evidence 79 and
Daubert v. Merrell Dow Pharmaceuticals, Inc. 80 Rule 702 governs the admissibility of
testimony by expert witnesses and “imposes on a district court a gatekeeper obligation” to ensure

73

Comcast Corp. v. Behrend, 569 U.S. 27, 33 (2013) (quoting Dukes, 564 U.S. at 350).

74

Occidental Petroleum Corp., 69 F. 4th at 1174 (quoting Comcast, 569 U.S. at 33).

75

Amgen Inc. v. Conn. Ret. Plans & Tr. Funds, 568 U.S. 455, 466 (2013).

76

Vallario v. Vandehey, 554 F.3d 1259, 1265 (10th Cir. 2009).

Occidental Petroleum Corp., 69 F. 4th at 1174; see Wallace B. Roderick Revocable Living Tr. V. XTO Energy,
Inc., 725 F.3d 1213, 1218 (10th Cir. 2013) (“Relaxing and shifting Rule 23(a)’s strict burden of proof results in an
abuse of discretion.”) (internal quotations and citations omitted).
77

78

Motion to Exclude.

Rule 702 provides, “A witness who is qualified as an expert by knowledge, skill, experience, training, or
education may testify in the form of an opinion or otherwise if the proponent demonstrates to the court that it is
more likely than not that: (a) the expert’s scientific, technical, or other specialized knowledge will help the trier of
fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and (d) the expert’s opinion reflects a reliable
application of the principles and methods to the facts of the case.” Fed. R. Evid. 702.
79

80

509 U.S. 579 (1993).

11

expert testimony or evidence “admitted is not only relevant, but reliable.” 81 The court must
“assess the reasoning and methodology underlying the expert’s opinion, and determine whether it
is both scientifically valid and applicable to a particular set of facts.” 82 As a recent amendment
to the Rule clarified, admissibility does not require the court determine an expert’s opinions are
correct, but rather that, by a preponderance of the evidence, it is “more likely than not” the
opinions are reliable. 83
PPC presents its own experts to rebut Singer’s opinions. This is common in antitrust
litigation, but “contradictory expert testimony does not control admissibility.” 84 So long as an
expert’s testimony is reliable, “it is for the factfinder to determine each expert’s trustworthiness
and credibility through the ‘conventional devices’ of ‘cross-examination, presentation of contrary
evidence, and careful instruction on the burden of proof.’” 85
IV.

ANALYSIS
Plaintiffs argue certification of the proposed class of Growers is appropriate because they

have satisfied their burden under Rule 23(a) and Rule 23(b)(3). Plaintiffs contend common
issues predominate and they have established they will prove “essential elements” of their claims
with class-wide proof. 86 In response, PPC argues class certification should be denied because
“there is no common evidence for resolution of Plaintiffs’ sweeping wage-suppression claims” as
“[t]he market for grower services is highly localized with myriad local factors that determine

81

Dodge v. Cotter Corp., 328 F.3d 1212, 1221 (10th Cir. 2003) (quoting Daubert, 509 U.S. at 589).

82

Id. (citing Daubert, 509 U.S. at 592–93).

83

See Fed. R. Evid. 702 advisory committee’s note to 2023 amendment.

84

In re Digital Music Antitrust Litig., 321 F.R.D. 64, 78 (S.D.N.Y. 2017).

In re Aluminum Warehousing Antitrust Litig., 336 F.R.D. 5, 30 (S.D.N.Y. 2020) (quoting Daubert, 509 U.S. at
596).
85

86

Motion for Class Certification at 9–10.

12

grower pay.” 87 PPC raises numerous arguments challenging Plaintiffs’ Rule 23 showing, as well
as the admissibility of Singer’s expert opinions supporting Plaintiffs’ Motion.
As explained below, the court concludes Plaintiffs have met their burden under Rule 23
and grants their Motion. Further, PPC’s challenges to the admissibility of Singer’s opinions go
to the weight a trier of fact should ascribe to them and do not render them so unreliable as to be
inadmissible. Accordingly, PPC’s Motion to Exclude is denied. 88
There is substantial overlap in the parties’ arguments on Plaintiffs’ Motion for Class
Certification and PPC’s Motion to Exclude. For clarity and efficiency, the court’s analysis of
PPC’s Motion is incorporated into the class certification analysis. Any residual issues pertaining
to the Motion to Exclude are addressed at the end of the order.
A. Rule 23(a)
Because of the unique nature of class actions, use of this litigation vehicle is justified
only in circumstances where the class representatives are “part of the class and ‘possess the same
interest and suffer the same injury’ as class members.” 89 The four requirements of Rule 23(a)—
numerosity, commonality, typicality, and adequacy of representation—guarantee “named
plaintiffs are appropriate representatives of the class whose claims they wish to litigate.” 90

87
Dkt. 502, Pilgrim’s Pride Corporation’s Opposition to Plaintiffs’ Motion for Class Certification [SEALED]
(Opposition to Class Certification) at 8.

PPC only challenges the reliability of Singer’s opinions and does not dispute his qualifications. Singer holds a
Ph.D. in economics from Johns Hopkins University, is a managing director of economic consulting firm Econ One,
and is a professor in the economics department at the University of Utah, where he teaches advanced antitrust
economics to Ph.D. candidates. See Singer Report, Appendix 1. The court finds Singer is qualified to offer expert
economic testimony in this case.
88

89

Dukes, 564 U.S. at 348–49 (quoting E. Tex. Motor Freight Sys., Inc. v. Rodriguez, 431 U.S. 395, 403 (1977)).

90

Id.

13

1. Numerosity
The numerosity prong of Rule 23(a)(1) requires plaintiffs show “the class is so numerous
that joinder of all members is impracticable.” 91 Though plaintiffs “must offer ‘some evidence of
established, ascertainable numbers constituting the class,’” there is “no set formula to determine
if the class is so numerous that it should be certified.” 92 In addition to raw numbers, there are
several “factors that enter into the impracticability issue.” 93 These may “include[e] the nature of
the action, the size of the individual claims, and the location of the members of the class.” 94
“Because it is such a fact-specific inquiry,” the court has “wide latitude” to determine the
standard has been met. 95
Plaintiffs argue the proposed class of 24,354 Growers is sufficient to meet the numerosity
requirement. 96 The court also observes the facts and circumstances of the case, notably the
nationwide dispersion of Growers, indicates joinder of such a large number of members would
be impracticable. PPC does not contest the numerosity requirement and the court finds it
satisfied.

91

Fed. R. Civ. P. 23(a)(1).

Colo. Cross Disability Coal. v. Abercrombie & Fitch Co., 765 F.3d 1205, 1215 (10th Cir. 2014) (quoting Rex v.
Owens ex rel. Okla., 585 F.2d 432, 436 (10th Cir. 1978)).

92

93

Horn v. Assoc’d Wholesale Grocers, Inc., 555 F.2d 270, 275 (10th Cir. 1977).

Colo. Cross Disability Coal., 765 F.3d at 1215 (quoting 7A Charles Alan Wright, Arthur R. Miller & Marry Kay
Kane, Federal Practice and Procedure § 1762, at 206–07 (3d ed. 2005)).

94

95

Trevizo v. Adams, 455 F.3d 1155, 1162 (10th Cir. 2006).

Motion for Class Certification at 22 (citing Wesley v. Snap Fin. LLC, 339 F.R.D. 277, 290–92 (D. Utah 2021)
(finding numerosity satisfied by proposed class of 2,425)).
96

14

2. Commonality
The commonality prong of Rule 23(a)(2) requires Plaintiffs demonstrate “there are
questions of law or fact common to the class.” 97 To satisfy this requirement, the proposed
class’s claims must depend on a “common contention” of such a nature that “determination of its
truth or falsity will resolve an issue that is central to the validity of each one of the claims in one
stroke.” 98 Key “to class certification . . . is not the raising of common ‘questions’—even in
droves—but, rather the capacity of a classwide proceeding to generate common answers apt to
drive the resolution of the litigation.” 99 That being said, “a single issue common to the class”
will suffice. 100 In a case alleging an antitrust conspiracy courts often find commonality readily
met because “by their nature, [these cases] deal with common legal and factual questions about
the existence, scope and effect of the alleged conspiracy.” 101
Plaintiffs argue the commonality requirement is satisfied because, among other issues,
the existence of the alleged antitrust conspiracy is common to the class. 102 In its Opposition,
PPC contends Plaintiffs have failed to establish commonality because they have not offered
“proof that all 21 Integrators, acting as a single cartel, had a general policy to enter into either the
Overarching Agreement or the [NPA] nationwide or a general policy of suppressing grower pay

Fed. R. Civ. P. 23(a)(2). Though similar, the question of commonality is distinct from the “far more demanding”
predominance inquiry under Rule 23(b)(3), discussed below. Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 624
(1997).
97

98

Dukes, 564 U.S. at 350.

99
In re Urethane Antitrust Litig., 768 F.3d 1245, 1253 (10th Cir. 2014) (quoting Dukes, 564 U.S. at 350) (emphasis
in original).
100

J.B. ex rel. Hart v. Valdez, 186 F.3d 1280, 1288 (10th Cir. 1999) (citation omitted).

In re Monosodium Glutamate Antitrust Litig., 205 F.R.D. 229, 232 (D. Minn. 2001) (quoting In re Sugar Indus.
Antitrust Litig., 73 F.R.D. 322, 335 (E.D. Pa. 1976)); see also In re Urethane, 768 F.3d at 1254–55 (finding the
more demanding predominance element is typically met in antitrust price-fixing cases because the existence of a
conspiracy and its impact are common questions capable of class-wide proof).
101

Motion for Class Certification at 23; Dkt. 514, Reply Memorandum of Law in Support of Plaintiffs’ Motion for
Class Certification [SEALED] (Plaintiffs’ Class Certification Reply) at 18–19.
102

15

as part of the [ISA].” 103 Absent such proof, PPC asserts the Supreme Court’s decision in Dukes
forecloses Plaintiffs’ effort to demonstrate commonality under Rule 23(a)(2). 104 The court
disagrees.
PPC reads Dukes to require all plaintiffs, regardless of the nature of their claim, prove
defendants operated under a “general policy” or engaged in some sort of “uniform practice” in
order to establish commonality. 105 In Dukes, the Supreme Court held a proposed class of Title
VII claimants alleging Wal-Mart engaged in a pattern or practice of sex discrimination failed to
satisfy Rule 23(a)(2) because they had not adduced evidence the company operated “‘under a
general policy of discrimination,’ which is what [plaintiffs] must show to certify a companywide
class.” 106 PPC argues Plaintiffs fail to meet this standard here because they have not provided
evidence of the Overarching Agreement or its constituent subparts, and the evidence
demonstrates “extensive and material variance” in the way Integrators use Agri Stats data. 107 At
bottom, according to PPC, “[t]hese facts demonstrate the ‘opposite of a uniform practice’ of any
relevant nature ‘that would provide commonality needed for class certification.’” 108
The court does not share PPC’s reading of Dukes. Dukes involved employment
discrimination claims under Title VII. As the Court there noted, in a Title VII case “the crux of
the inquiry” is the rationale for particular employment decisions. 109 In that context, plaintiffs
could not demonstrate commonality without proving a company-wide policy or uniform practice

103

Opposition to Class Certification at 21.

104

Id. (citing Dukes, 564 U.S. at 354).

105

Id. at 21–22.

106

Dukes, 564 U.S. at 358 (quoting Gen. Tel. Co. of S.W. v. Falcon, 457 U.S. 147, 159 n.15 (1982)).

107

Opposition to Class Certification at 21–22.

108

Id. at 22 (quoting Dukes, 564 U.S. at 355).

109

Dukes, 564 U.S. at 352.

16

of discrimination. Otherwise, the litigation would be consumed by inquiries into “literally
millions” of discretionary decisions of individual store managers. 110 Without the “glue” of a
general company policy “holding the alleged reasons for all those decisions together,” the
examination of class members’ claims could not “produce a common answer to the crucial
question why was I disfavored.” 111 The portions of Dukes PPC relies on are unique to the Title
VII discrimination context and inapt here for at least two reasons.
First, the express language of the opinion and the precedent discussed by the Supreme
Court indicates language concerning general policies or uniform practices has specific
application in Title VII claims. Plaintiffs there alleged Wal-Mart engaged in a pattern or practice
of discrimination—a discrete type of Title VII claim. As the Court explained, “In a pattern-orpractice case, the plaintiff tries to ‘establish by a preponderance of the evidence that . . .
discrimination was the company’s standard operating procedure[,] the regular rather than the
unusual practice.’” 112 Further, the Court draws heavily from its prior decision in Falcon—also a
Title VII discrimination case addressing Rule 23(a)’s requirements. The Court cites Falcon for
the proposition that companywide class certification requires claimants “demonstrate that the
entire company ‘operate[s] under a general policy of discrimination.’” 113 On its face, the
portions of Dukes PPC relies on appear to be cabined to the Title VII context.
Second, the Tenth Circuit’s treatment of antitrust class actions following Dukes further
suggests PPC’s reliance is misplaced. In Urethane, an antitrust case involving an alleged pricefixing conspiracy decided three years after Dukes, the Tenth Circuit addressed a challenge to a

110

Id.

111

Id. (emphasis in original).

112

Id. at 352 n.7 (quoting Teamsters v. United States, 431 U.S. 324, 336 (1977)).

113

Id. at 358 (quoting Falcon, 457 U.S. at 159 n.15).

17

district court’s certification of a Rule 23(b)(3) class. 114 The Circuit affirmed the district court’s
determination that common issues predominated because “key elements of the price-fixing
claim,” including the existence of the conspiracy and impact, “raised common questions that
were capable of class-wide proof.” 115 Indeed, the Circuit continued, “Under the prevailing view,
price-fixing affects all market participants, creating an inference of class-wide impact,” meaning
a question common to the class. 116 This opinion came in the wake of Dukes and the decision
squarely addresses Dukes for other reasons. Notwithstanding, the Circuit did not suggest that,
post-Dukes, plaintiffs seeking class certification for an alleged antitrust conspiracy must prove a
general policy or uniform practice to establish commonality.
The court agrees with Plaintiffs and concludes the Rule 23(a)(2) commonality
requirement is satisfied. A single common issue whose answer will drive the litigation forward
clears this hurdle. 117 Here, the existence of a conspiracy in violation of antitrust law, among
others, is an issue common to the class.
3. Typicality
Rule 23(a)(3) requires Plaintiffs show their claims “are typical of the claims” of the class
they seek to represent. 118 Similar to commonality, “typicality exists where . . . all class members
are at risk of being subjected to the same harmful practices, regardless of any class member’s

In re Urethane, 768 F.3d at 1254–56. The Rule 23(a)(2) commonality inquiry is akin to the Rule 23(b)(3)
predominance inquiry. However, the “‘commonality’ requirement is subsumed under, or superseded by, the more
stringent Rule 23(b)(3) requirement that questions common to the class ‘predominate over’ other questions.”
Brayman v. KeyPoint Gov. Sols., Inc., 83 F.4th 823, 838 (10th Cir. 2023) (quoting Amchem Prods., 521 U.S. at
609). In other words, if predominance is satisfied, commonality is satisfied.
114

115

In re Urethane, 768 F.3d at 1254.

116

Id.

117

Brayman, 83 F.4th at 837 (citation omitted).

118

Fed. R. Civ. P. 23(a)(3).

18

individual circumstances.” 119 The claims of Plaintiffs and the proposed class members “need not
be identical to satisfy typicality.” 120 So long as Plaintiffs’ claims are “based on the same legal or
remedial theory” as other class members, “differing fact situations of the class members do not
defeat typicality.” 121 “[I]n the antitrust context, typicality ‘will be established by plaintiffs and
all class members alleging the same antitrust violations by defendants.’” 122
Plaintiffs assert typicality is met because all proposed class members seek to recover
underpayments resulting from the same alleged violation of antitrust laws, the Overarching
Agreement to suppress Grower compensation. 123 PPC reiterates in opposition its view that there
is no evidence of an Overarching Agreement and argues typicality is not met because,
concerning the NPA, “a majority of the named Plaintiffs” either did not try to switch Integrators,
did not want to switch Integrators, or lived in locations with a single Integrator so could not have
been subject to the NPA. 124 In reply, Plaintiffs contend PPC’s argument misstates their factual
allegations and is “legally irrelevant” for purposes of establishing typicality. 125 The court agrees.
As stated above, on a motion for class certification, the court must accept Plaintiffs’ wellpleaded factual allegations as true. As Plaintiffs allege, the effects of the Overarching
Agreement, including the NPA and the ISA, were nationwide and transmitted through the
compensation of all Growers. 126 According to Plaintiffs, the impact of the alleged antitrust

119

DG ex rel. Stricklin v. Devaughn, 594 F.3d 1188, 1199 (10th Cir. 2010).

120

Id. at 1198.

121

Adamson v. Bowen, 855 F.2d 668, 676 (10th Cir. 1988).

122
In re EpiPen Mktg, Sales Prac. and Antitrust Litig., No. 17-md-2785-DDC-TJJ, 2020 WL 1180550, at *15 (D.
Kan. Mar. 10, 2020) (quoting In re Vitamins Antitrust Litig., 209 F.R.D. 251, 260 (D.D.C. 2002)).
123

Motion for Class Certification at 23.

124

Opposition to Class Certification at 41.

125

Plaintiffs’ Class Certification Reply at 30.

126

Motion for Class Certification at 13–18.

19

violation—artificially suppressed pay—was felt by all Growers, regardless of whether an
individual Grower tried to switch Integrators, did not want to switch, or could not switch. 127 The
anticompetitive effects of the conduct resulted in lower pay for the entire class. 128 PPC’s
argument concerning whether certain named Plaintiffs were able to switch Integrators or desired
to do so misconstrues the facts as alleged by Plaintiffs and is not relevant to the typicality
inquiry. The central point is not the switching status of these Plaintiffs, but that, because of
PPC’s alleged conduct in entering into a nationwide agreement, all Growers were injured by
reduced competition resulting from the alleged conspiracy.
The court concludes that, although there may be some variation in the factual situation of
Plaintiffs, named Plaintiffs’ claims rest on the same legal and remedial theory as members of the
proposed class. Accordingly, Plaintiffs have satisfied the typicality requirement.
4. Adequacy of Representation
The final element of Rule 23(a) requires the party seeking class certification to show they
“will fairly and adequately protect the interests of the class.” 129 The court must consider two
questions when evaluating adequacy: “(1) [D]o the named plaintiffs and their counsel have any
conflicts of interest with other class members and (2) will the named plaintiffs and their counsel
prosecute the action vigorously on behalf of the class?” 130 Minor conflicts between class
members will not preclude certification—“[o]nly a ‘fundamental conflict’ about the specific
issues in controversy will prevent a named plaintiff from representing the interests of the class

127

See id. at 27–29.

128

Id.; see also Complaint ¶¶ 134, 137–42.

129

Fed. R. Civ. P. 23(a)(4).

130

Rutter & Wilbanks Corp. v. Shell Oil Co., 314 F.3d 1180, 1187–88 (10th Cir. 2002) (citation omitted).

20

adequately.” 131 A conflict is fundamental “where some class members claim an injury resulting
from conduct that benefited other class members.” 132
Plaintiffs argue adequacy is satisfied because named Plaintiffs and their counsel have no
conflicts of interest with the class and, consistent with their involvement in the case to this point,
will continue to prosecute the action vigorously in the interests of the class. 133 Plaintiffs
highlight they have already achieved $69 million in settlements for the class, there have been no
issues with conflicts in two final approval hearings, and the court has previously found them to
be adequate representatives. 134 PPC asserts named Plaintiffs are not adequate representatives of
the class because they have had limited involvement with case strategy and half of the named
Plaintiffs stopped working as Growers early in the class period. 135 The court again disagrees
with PPC.

In re EpiPen, 2020 WL 1180550, at *19 (D. Kan. Mar. 10, 2020) (quoting In re Motor Fuel Temperature Sales
Practices Litig., 292 F.R.D. 652, 671 (D. Kan. 2013)).

131

132

Id.

133

Motion for Class Certification at 23.

134

Id.

135

Opposition to Class Certification at 42.

21

PPC does not identify any fundamental conflicts, nor any reason to conclude Plaintiffs
and their counsel would be unable to prosecute the action vigorously on behalf of the class. 136
Its arguments are particularly unpersuasive in view of Plaintiffs’ prosecution of the case to this
point. As Plaintiffs note, they have represented the interests of this proposed class through years
of litigation, successfully securing settlements on behalf of the class with all PPC’s prior coDefendants. At no point has their adequacy been questioned, and the court has affirmatively
concluded they are adequate to serve as class representatives for each of the previous settlement
classes. 137 Given that involvement, PPC identifies no reason why Plaintiffs are inadequate for
these purposes. The court concludes Plaintiffs have satisfactorily demonstrated they are
adequate representatives of the proposed class. 138
Accordingly, Plaintiffs have satisfied each of the threshold requirements of Rule 23(a).
The court now considers whether they have met their burden under Rule 23(b)(3).

136
PPC cites two out-of-circuit district court decisions to support its argument that Plaintiffs’ purported lack of
involvement with case strategy renders them inadequate. See Karnes v. Fleming, No. H-07-0620, 2008 WL
4528223, at *3 (S.D. Tex. July 31, 2008) (finding an inadequate representative where “her knowledge of the facts
and issues in this case were derived almost exclusively from counsel”); Ogden v. AmeriCredit Corp., 225 F.R.D.
529, 533 (N.D. Tex. 2005) (finding an inadequate representative where “there are many instances in which she has
little or no knowledge outside of that given to her by her attorneys”). The court finds these decisions unpersuasive
because the facts are readily distinguishable from Plaintiffs here. Plaintiffs may not be experts on the legal
intricacies of antitrust law or complex litigation procedures, but the court finds no binding authority suggesting they
must be to meet the requirements of Rule 23(a)(4). Other district courts in the Tenth Circuit have persuasively
found plaintiffs adequate in the antitrust price-fixing context when they understand their role is to represent the best
interests of the class, even when knowledge of relevant legal issues is derived solely from their attorneys. See In re
Universal Serv. Fund Tel. Billing Prac. Litig., 219 F.R.D. 661, 671–73 (D. Kan. 2004) (finding adequacy because
named plaintiff “understands” role of class representative even where named plaintiff “admitted in his deposition
that all information he possesses regarding [defendant’s] alleged overcharge has been provided by his attorney, and
that he relied on counsel to obtain factual support for the allegation of collusion in the complaint”).
137

See Order Preliminarily Approving of Settlement with Tyson Defendants, Certifying the Settlement Class for
Purposes of Settlement, and Appointing Settlement Class Counsel ¶ 9; Order Preliminarily Approving Settlement
with Perdue, Certifying the Settlement Class for Purposes of Settlement, and Appointing Settlement Class Counsel ¶
9; Order Preliminarily Approving Settlement with Koch, Certifying the Settlement Class for Purposes of Settlement,
and Appointing Settlement Class Counsel ¶ 9.
138

PPC does not challenge the adequacy of proposed class counsel and the court concludes they are adequate.

22

B. Rule 23(b)(3): Predominance
Under Rule 23(b)(3), Plaintiffs must establish “(1) that questions of law or fact common
to class members predominate over any questions affecting only individual members, and (2)
that a class action is superior to other available methods of fairly and efficiently adjudicating the
controversy.” 139 These standards are met “as long as plaintiffs can establish an aggregation of
legal and factual issues, the uniform treatment of which is superior to ordinary one-on-one
litigation.” 140 Though the court engages in a rigorous analysis to ensure the requirements of
Rule 23 are met, it must remain mindful of the central purpose of the inquiry: “[T]he office of a
Rule 23(b)(3) certification ruling is not to adjudicate the case; rather, it is to select the metho[d]
best suited to adjudication of the controversy fairly and efficiently.” 141 The court first analyzes
predominance before turning to superiority below.
The predominance inquiry evaluates “whether the common, aggregation-enabling issues
in the case are more prevalent or important than the noncommon, aggregation-defeating,
individual issues.” 142 The court categorizes “issues in the case as common or not, and then
weigh[s] which issues predominate.” 143 Individual issues or questions are those for which
“members of a proposed class will need to present evidence that varies from member to
member.” 144 In contrast, “a common question is one where ‘the same evidence will suffice for
each member to make a prima facie showing [or] the issue is susceptible to generalized, class-

139

Fed. R. Civ. P. 23(b)(3).

140

CGC Holding Co., LLC v. Broad & Cassel, 773 F.3d 1076, 1086 (10th Cir. 2014).

141

Amgen, 568 U.S. at 460 (internal quotations omitted).

142
Occidental Petroleum Corp., 69 F.4th at 1175 (quoting Tyson Foods, Inc. v. Bouaphakeo, 577 U.S. 442, 453
(2016)).
143

CGC Holding Co., 773 F.3d at 1087 (emphasis in original).

Tyson Foods, 577 U.S. at 453 (quoting 2 W. Rubenstein, Newberg on Class Actions § 4:50, pp. 196–97 (5th ed.
2012)).

144

23

wide proof.” 145 Put differently, a common question is one where a failure of proof at summary
judgment or trial would not result in individual questions “overwhelm[ing] the questions
common to the class.” 146 Rather, “the failure of proof . . . would end the case for one and for all;
no claim would remain in which individual [] issues could potentially predominate.” 147 Again,
the court’s analysis at this stage turns on “to what extent issues susceptible to class-wide proof
predominate over those requiring individual inquiries—not whether such issues are likely to be
resolved in Plaintiffs’ favor.” 148
The evaluation of whether common issues predominate begins “with the elements of the
underlying cause of action.” 149 Plaintiffs allege PPC and its co-conspirators’ Overarching
Agreement to suppress Grower pay was a per se violation of Section 1 of the Sherman Act, 15
U.S.C. § 1, and Section 4 of the Clayton Act, 15 U.S.C. § 15. 150 “Section 1 of the Sherman Act
prohibits ‘[e]very contract, combination in the form of trust or otherwise, or conspiracy, in
restraint of trade or commerce among the several states.’” 151 To establish their claim, Plaintiffs
must prove “(1) a violation of antitrust laws, (2) an injury they suffered as a result of that
violation, and (3) an estimated measure of damages.” 152 Though the court considers Plaintiffs’
evidence in relation to each of these elements, “[c]lass-wide proof is not required for all

145

Id.

146

Amgen Inc., 568 U.S. at 468.

147

Id.

148

Occidental Petroleum Corp., 69 F.4th at 1185 (citing Tyson Foods, 577 U.S. at 453).

149

Erica P. John Fund, Inc. v. Halliburton Co., 563 U.S. 804, 810 (2011).

150

Motion for Class Certification at 8.

Buccaneer Energy (USA) Inc. v. Gunnison Energy Corp., 846 F.3d 1297, 1306 (10th Cir. 2017) (quoting
15 U.S.C. § 1).
151

In re High-Tech Emp. Antitrust Litig., 985 F. Supp.2d 1167, 1183 (N.D. Cal. 2013) (quoting In re New Motor
Vehicles Canadian Export Antitrust Litig., 522 F.3d 6, 19 n.18 (1st Cir. 2008)).
152

24

issues.” 153 The presence of individualized issues concerning an element of Plaintiffs’ claim—
damages for example—does not necessarily preclude certification. 154 Predominance “simply
requires a showing that the questions common to the class predominate over individualized
questions.” 155
Courts routinely find predominance met in certain types of antitrust cases involving
alleged unlawful conspiracies and horizontal agreements between ostensible competitors,
particularly when those competitors exercise substantial market power. 156 Indeed, defendants
seeking to defeat class certification in a case alleging a horizontal price-fixing conspiracy “face
an uphill battle.” 157 This is so because, depending on the circumstances, “the existence of a
conspiracy [is] the overriding issue even when the market involves diversity in products,
marketing, and prices.” 158 Further, “[u]nder the prevailing view,” antitrust conspiracies such as
price-fixing “affect[] all market participants, creating an inference of class-wide impact even
when prices are individually negotiated.” 159 That inference is “especially strong” where
evidence demonstrates the “conspiracy artificially inflated the baseline for price

153

In re Urethane, 768 F.3d at 1255 (citing Amgen, 568 U.S. at 469).

154

Id.

155

Id.

See Amchem Prods., 521 U.S. at 625 (“Predominance is a test readily met in certain cases alleging . . . violations
of the antitrust laws.”).
156

157

In re Urethane Antitrust Litig., 251 F.R.D. 629, 636 (D. Kan. 2008), aff’d, In re Urethane, 768 F.3d at 1254.

In re Urethane, 768 F.3d at 1255 (collecting cases) (citing In re Scrap Metal Antitrust Litig., 527 F.3d 517, 535
(6th Cir. 2008) (“[p]redominance is a test readily met in certain cases alleging . . . violations of the antitrust laws
because proof of the conspiracy is a common question that is thought to predominate over the other issues of the
case.”) (emphasis in original)); see also In re Broiler Chicken Antitrust Litig., No. 16 C 8637, 2022 WL 1720468, at
*7 (N.D. Ill. May 27, 2022) (noting this “type of alleged conspiracy is the prototypical example of an issue where
common questions predominate, because it is much more efficient to have a single trial on the alleged conspiracy
rather than thousands of identical trials all alleging identical conspiracies based on identical evidence”) (quoting
Kleen Prod. LLC v. Int’l Paper, 306 F.R.D. 585, 594 (N.D. Ill. 2015)); 7AA Wright & Miller, Federal Practice &
Procedure § 1781 (3d Ed. 2014) (“[W]hether a conspiracy exists is a common question that is thought to
predominate over the other issues in the case and has the effect of satisfying the prerequisite in Rule 23(b)(3).”).
158

159

In re Urethane, 768 F.3d at 1254 (collecting cases).

25

negotiations” 160—or, in a wage suppression case, artificially depressed the baseline. This is not
a “broad presumption” applicable to all antitrust class actions. 161 But, in cases where plaintiffs
present evidence of standardized pricing structures, a horizontal conspiracy to fix prices (or the
inverse, suppress wages), and an artificially inflated baseline for pricing negotiations (or
artificially depressed baseline for pay), the evidence may support “a reasonable conclusion that
‘price-fixing would have affected the entire market.’” 162 Plaintiffs here do not rely on an
inference of common impact, but it is against this backdrop PPC mounts its challenge to
predominance. 163
Plaintiffs argue common issues predominate in this case “as a whole” and they will
establish each element of their Sherman Act claim with class-wide proof. 164 In its Opposition,
PPC contends Plaintiffs have failed to meet their burden under Rule 23(b)(3) and challenges

160

Id.

161

Occidental Petroleum Corp., 69 F.4th at 1182.

162
Id. (quoting In re Urethane, 768 F.3d at 1255) (“We agree that In re Urethane does not endorse such a broad
presumption. In re Urethane is limited to its facts, in particular plaintiffs’ evidence of the polyurethane industry’s
pricing structure, the defendant’s price-fixing conspiracy, and the artificially inflated baseline for pricing
negotiations.”).
163
The parties dispute whether this is a price-fixing case. Compare Opposition to Class Certification at 38 (“This is
not a price fixing case . . . .”) with Plaintiffs’ Class Certification Reply at 16 n.7 (asserting PPC’s contention this is
not a price fixing case “misstates antitrust conspiracy law.”) Though not essential to this Order, the court observes a
wage-suppression conspiracy, as Plaintiffs allege here, bears many of the same characteristics that lead courts to find
predominance readily met in a price-fixing case. Price-fixing involves a horizontal conspiracy between sellers to
artificially drive prices up. Predominance is commonly found in these cases—particularly where there is evidence
of a conspiracy to increase prices and a standardized pricing structure—because the nature of the conspiracy
supports the conclusion that it would affect the whole market. See Occidental Petroleum Corp., 69 F.4th at 1182.
Paralleling this, wage-suppression involves a horizontal conspiracy between buyers to artificially drive the price
paid for a seller’s services down. In a case with evidence of a conspiracy to suppress pay and a class-wide pay
structure, a similar conclusion that the conspiracy affects the whole market could be reasonably reached. See
Beltran v. InterExchange, Inc., No. 14-cv-03074-CMA-CBS, 2018 WL 1948687, at *8 (D. Colo. Feb. 2, 2018)
(finding it “is presumably true” the strong inference of class-wide impact in a price-fixing case applies in a wagesuppression case where there “is evidence that the conspiracy artificially deflated the baseline for au pairs’
wages.”). See also Fleischman v. Albany Med. Ctr., 728 F. Supp.2d 130, 157 (N.D.N.Y. July 22, 2010) (applying
Sherman Act standards for a price-fixing case to a wage-suppression case at summary judgment).
164

Motion for Class Certification at 9.

26

Plaintiffs’ showing on each element of their claim. 165 Plaintiffs rely on both direct evidence (in
the form of documentary and testimonial evidence) and circumstantial evidence (drawing heavily
from Singer’s expert economic and econometric analysis) to demonstrate their claim is
susceptible to common proof. Ultimately, PPC’s arguments to defeat class certification
underscore the predominance of common issues in this case, demonstrating the proposed class
will either prevail or fall based on class-wide proof.
1. Antitrust Violation
Plaintiffs allege that, since at least 2008, PPC and its co-conspirator Integrators
participated in the Overarching Agreement to “prevent starting a grower war,” “match one
another’s Grower pay,” and “control” Integrator costs. 166 In other words, PPC allegedly violated
antitrust laws by engaging in a horizontal conspiracy with other Integrators to suppress Grower
pay. Plaintiffs argue the Overarching Agreement, “implemented nationwide” through the NPA
and ISA, is capable of class-wide proof. 167 In support of the alleged violation, Plaintiffs set forth
direct evidence, in the form of communications between Integrators and deposition testimony, as
well as circumstantial evidence, primarily Singer’s expert analysis. According to Plaintiffs,
“[t]he question of whether Plaintiffs can prove an antitrust violation—or PPC can refute that
proof—is common to the Class as a whole.” 168
The court reads PPC’s Opposition to argue Plaintiffs are unable to establish an antitrust
violation through class-wide proof because, while focusing on the NPA and ISA, Plaintiffs “fail

165

Opposition to Class Certification at 23.

166

Motion for Class Certification at 13.

167

Id.

168

Id. (emphasis in original).

27

to adduce any evidence” of an Overarching Agreement. 169 PPC contends that to prove a
violation through common proof, “‘the circumstances must [] reveal a unity of purpose or a
common design and understanding, or a meeting of minds in an unlawful arrangement’ to
suppress Grower pay nationwide over an 11-year period, through either of the alleged
agreements . . . .” 170 PPC argues the “wide variance” in how Integrators used Agri Stats data and
the fact that only about half of Integrator Complexes “arguably had some form of limited or
sporadic no-poach understanding” demonstrates there is no evidence PPC and its 20 coconspirator Integrators had such an “unlawful common design.” 171 Rather, separate proof would
be required to establish which, if any, Integrators acted unlawfully to suppress grower pay at
certain times and at certain locations. 172
“The essence of a claim of a violation of Section 1 of the Sherman Act is the agreement
itself.” 173 However, courts have long-held plaintiffs in a case involving an alleged horizontal
conspiracy do not need “the smoking gun”—direct evidence—to establish an antitrust
conspiracy. 174 Circumstantial evidence will suffice. Plaintiffs here present both direct and

169

Opposition to Class Certification at 23.

170
Id. at 25 (quoting Conrad v. Jimmy John’s Franchise, LLC, No. 18-CV-00133-NJR, 2021 WL 3268339, at *9
(S.D. Ill. July 30, 2021)).
171

Id.

172

Id.

173

Champagne Metals v. Ken-Mac Metals, Inc., 458 F.3d 1073, 1082 (10th Cir. 2006) (citation omitted).

In re Text Messaging Antitrust Litig., 630 F.3d 622, 628–29 (7th Cir. 2010) (holding “[d]irect evidence of
conspiracy is not a sine qua non” in a price fixing case, “[c]ircumstantial evidence can establish an antitrust
conspiracy”); see also Am. Tobacco Co. v. United States, 328 U.S. 781, 809 (1946) (“No formal agreement is
necessary to constitute an unlawful conspiracy . . . . The essential combination or conspiracy in violation of the
Sherman Act may be found in a course of dealings or other circumstances as well as in any exchange of words.”);
United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 177 (1940) (“The alleged conspiracy is not to be found in
any formal contract or agreement. It is to be pieced together from the testimony of many witnesses and the contents
of over 1,000 exhibits, extending through the 3,900 printed pages of the record.”).
174

28

circumstantial to establish the alleged antitrust violation, all of which is common to the proposed
Grower class.
Concerning the NPA, Plaintiffs present documentary and testimonial evidence of an
agreement between PPC and its co-conspirator Integrators to not recruit each other’s Growers.
For example, a PPC manager discussed in internal communications his relationship with a
counterpart at Tyson, writing they “typically have not tried to cross lines, shane [sic] [a Tyson
employee] and I have have [sic] a good relationship and we try to stay out of each others [sic]
area.” 175 Similarly, a former PPC manager testified in a deposition to an agreement with coconspirator Harrison Poultry, stating they “made a gentlemen’s agreement amongst each other
that we [PPC] would not recruit broiler producers [Growers] from Harrison and he [Harrison]
would not go to PPC producers [Growers] and try to recruit them.” 176 Another PPC manager
testified “the No-Poach was ‘an unwritten word’ among Integrators to not ‘go on anybody’s farm
while they [] have chickens and try and recruit that grower,’” stating “that rule applied to the
‘chicken business, in general, everybody.’” 177
In addition to this documentary evidence, Plaintiffs also produce circumstantial evidence
demonstrating the NPA through class-wide proof. Much of this evidence is Singer’s qualitative
and quantitative analysis of other record evidence. For example, Singer’s analysis of Integrator
data demonstrates the rate of Growers switching Integrators was low across all Integrators,
regions, and years, except for a discrete period of time in the so-called Delmarva region where

175

Motion for Class Certification at 14 (quoting Dkt. 454-3, Exhibit 11).

176

Id. (quoting Dkt. 454-3, Exhibit 8).

Id. at 15 (quoting Dkt. 454-3, Exhibit 13). The full context of this quote suggests the purpose of the “unwritten”
rule was to prevent the spread of disease. Id. However, this evidence is only one piece among others offered in
support of the NPA. Its probative value or persuasiveness is a question for summary judgment or trial. For these
purposes, whether it is compelling evidence of the alleged NPA or not is a question common to the class.
177

29

the NPA broke-down and a “Grower war” ensued until the NPA was restored. 178 Singer also
offers opinions that economic theory suggests the existence of the NPA because co-conspirator
behavior “was inconsistent with the expectations of firms behaving unilaterally.” 179 This
circumstantial evidence is further corroborated by testimony from witnesses indicating an
“industrywide practice not to actively recruit Growers from rival Integrators.” 180 For example, a
Koch manager, one of the alleged co-conspirator Integrators, testified a PPC manager in his area
“let [him] know that they [PPC] weren’t going to be calling on our growers trying to pick them
up during that time . . . .” 181
Likewise, Plaintiffs present evidence capable of demonstrating the existence of the ISA
through common proof. According to Plaintiffs, PPC and all alleged co-conspirator Integrators
provided Grower compensation information to Agri Stats. 182 In return, they each received
weekly and monthly reports from Agri Stats featuring the competitively sensitive information of
the other co-conspirators. 183 Plaintiffs provide testimonial evidence from executives at various
Integrators that each co-conspirator would set and adjust Grower compensation based off the
Agri Stats nationwide benchmark. 184 And, though the data was anonymized, it “was so granular
that Integrators could and did ‘reverse engineer’ it to identify data applicable to specific
competitors’ Complexes.” 185 Plaintiffs also produce evidence of direct “interfirm exchanges” of

178

Motion for Class Certification at 15.

179

Id.

180

Id.

181

Id. at 16 n.16 (quoting Dkt. 454-3, Exhibit 19).

182

Id. at 16.

183

Id.

184

Singer Report ¶ 69.

185

Motion for Class Certification at 16.

30

Grower pay information between Integrators. 186 For example, an internal PPC email
demonstrating individuals from PPC, Tyson, Perdue, Wayne, Peco, Keystone, and Fieldale
exchanged plans for future Grower pay, determining it “[s]ounds like we are all in about the
same place.” 187
As Plaintiffs allege, the NPA and ISA “work together to suppress Grower pay” and
together provide class-wide proof of the Overarching Agreement. 188 According to Singer,
economic theory suggests the “21 Integrators’ joint participation in the NPA and ISA would be
economically irrational in the absence of the Overarching Agreement.” 189
PPC broadly argues Plaintiffs fail to demonstrate common proof will establish the alleged
antitrust violation because they provide no evidence of the Overarching Agreement. 190 As PPC
explains, Plaintiffs’ evidence concerning the NPA and ISA, including Singer’s opinions, treat
each sub-agreement as a separate agreement. They do not serve as evidence of the Overarching
Agreement. 191 In addition, PPC contends common issues do not predominate because “separate
proof” will be required to determine how specific Integrators used the shared pay information
and whether a particular Complex operated under a NPA at a particular point in time. 192
PPC’s arguments are unpersuasive because they are not tailored to the question at issue in
the court’s predominance inquiry. Rather than undermining Plaintiffs’ showing that the alleged

186

Id.

187

Id. at 18 (quoting Dkt. 454-3, Exhibit 27).

188

Plaintiffs’ Class Certification Reply at 15 (citing Singer Report ¶¶ 200–01).

189

Id.

190

Opposition to Class Certification at 23.

191

Id. at 24.

192

Id. at 25.

31

antitrust violation is susceptible to class-wide proof, PPC’s arguments persuasively demonstrate
the first element of Plaintiffs’ claim is susceptible to resolution by class-wide evidence.
As an initial matter, the absence of direct evidence of the Overarching Agreement is not
fatal to Plaintiffs’ claim at this stage. No “smoking gun” 193 or “formal agreement” 194 is required
to prove the existence of an unlawful horizontal conspiracy. Plaintiffs’ proof of violation can
rest entirely on circumstantial evidence. 195 Though Plaintiffs here may not produce direct
evidence of the alleged nationwide Overarching Agreement, they produce direct and
circumstantial evidence supporting the existence of the purported sub-components, the NPA and
the ISA. Then, through the expert opinions of Singer, Plaintiffs offer circumstantial evidence
based on conventional principles of economic theory that participation in the NPA and the ISA
would not be economically rational in the absence of the nationwide Overarching Agreement.
This discussion illustrates the shortcoming with PPC’s arguments at this stage. What is
relevant here is not whether the Overarching Agreement exists or not. What is relevant is
whether its existence is susceptible to class-wide proof. Plaintiffs and PPC both demonstrate it
is. PPC is not arguing “‘some fatal dissimilarity’ among class members,” but rather “‘a fatal
similarity—[an alleged] failure of proof as to an element of the [P]laintiffs’ cause of action.’” 196
Either there is a nationwide conspiracy to suppress grower pay or there is not. 197 If the evidence

193

In re Text Messaging Antitrust Litig., 630 F.3d at 628–29.

194

Am. Tobacco Co., 328 U.S. at 809.

195

See In re Text Messaging Antitrust Litig., 630 F.3d at 628–29.

196

Occidental Petroleum Corp., 69 F.4th at 1179 (quoting Amgen Inc., 568 U.S. at 470).

197
At times Plaintiffs suggest if the court declines to certify the proposed nationwide class, it could alternatively
certify various regional classes. See Plaintiffs’ Class Certification Reply at 14. The court declines this invitation.
Plaintiffs’ conclusory assertion that the evidence also supports regional class certification—without even defining
the geographic scope of the suggested regional classes—is wholly inadequate. Plaintiffs focus their Motion on a
nationwide class, PPC responds to Plaintiffs’ request to certify a nationwide class, and that is what the court
considers.

32

Plaintiffs present to establish an antitrust violation is not compelling at summary judgment or
trial, the litigation does not devolve into thousands of mini-trials. For example, a trier of fact
would not have to establish if some Complexes operated under an NPA at some points in time—
that is not Plaintiffs’ theory. If the evidence does not establish the existence of the alleged
nationwide conspiracy for the duration of the proposed class period, Plaintiffs fail to establish an
element of their claim and they simply lose their case.
In sum, Plaintiffs have demonstrated the first element of their claim, antitrust violation,
presents common questions capable of class-wide resolution. Accordingly, the court finds
common questions will predominate with respect to the alleged antitrust violation.
2. Antitrust Impact
The second element Plaintiffs’ must prove to prevail on their Sherman Act § 1 wagesuppression claim is “that the proposed class suffered injury from the alleged antitrust
violation—an element commonly called impact.” 198 Antitrust injury “is an injury of the type the
antitrust laws were intended to prevent and that flows from that which makes the defendant’s
acts unlawful.” 199 In other words, as Plaintiffs allege here, injury results from PPC’s
anticompetitive conspiracy to suppress Grower pay. The antitrust injury requirement ensures
plaintiffs “recover only if the loss stems from a competition-reducing aspect or effect of the
defendant’s behavior.” 200
Plaintiffs rely heavily on Singer’s economic and econometric analysis, as well as
documentary and testimonial evidence, to demonstrate their ability to prove impact through

198

In re Urethane, 251 F.R.D. at 634.

Elliott Indus. Ltd. v. BP Am. Prod. Co., 407 F.3d 1091, 1124 (10th Cir. 2005) (quoting Reazin v. Blue Cross &
Blue Shield of Kan., Inc., 899 F.2d 951, 962 n. 15 (10th Cir. 1990)).
199

Id. at 1124–25 (emphasis in original) (quoting Atl. Richfield Co., v. USA Petroleum Co., 495 U.S. 328, 344
(1990)).
200

33

common proof. As is common in antitrust class certification motions, the primary thrust of
PPC’s effort to defeat certification and exclude Singer’s opinions is trained on this element. For
its part, PPC attempts to undermine Plaintiffs’ showing through the analysis and opinions of its
own competing experts—Dr. Justin McCrary, 201 Dr. Celeste Saravia, 202 and Dr. John Carey. 203
Plaintiffs seek to demonstrate the class-wide impact of the alleged conspiracy to suppress
Grower pay through a two-step approach. 204 At the first step, using documentary, testimonial,
and econometric evidence, Plaintiffs demonstrate their ability to show the Overarching
Agreement suppressed Grower pay through class-wide evidence. 205 Next, again drawing from
documentary, testimonial, and econometric evidence—notably, evidence of a nationwide price
structure—Plaintiffs demonstrate through common proof this suppressed pay “impacted all or
nearly all members of the Class.” 206 Plaintiffs’ approach follows “a roadmap widely accepted in
antitrust class actions that use evidence of general price effects plus evidence of a price structure
to conclude that common evidence is capable of showing widespread harm to the class.” 207
PPC broadly argues Plaintiffs cannot prove impact through common proof because the
market for broiler grow-out services is local, not nationwide, and because Singer’s opinions
underlying Plaintiffs’ Motion are inadmissible. 208 However, PPC’s arguments are not drawn to
the standards applied in the Rule 23(b)(3) predominance inquiry. They may be compelling at

201

Dkt. 454-2, Exhibit 3: Expert Report of Justin McCrary, Ph.D. (McCrary Report).

202

Dkt. 346-1, Exhibit 1: Expert Report of Celeste Saravia, Ph.D. (Saravia Report).

203

Dkt. 346-2, Exhibit 2: Expert Report of John B. Carey, Ph.D. (Carey Report).

204

Motion for Class Certification at 26–27.

205

Id. at 27.

206

Id. at 29.

207

In re High-Tech Emp., 985 F.Supp. 2d at 1206 (citations omitted).

208

Opposition to Class Certification at 34–39.

34

summary judgment or trial, but they will be compelling because they demonstrate Plaintiffs’
theory fails on a class-wide basis. They do not show individualized inquiry will predominate.
Further, PPC’s critiques of Singer’s analysis go to the weight a trier of fact should ascribe to his
opinions. They do not demonstrate his methodology is inadmissibly unreliable.
At this stage, the court need not determine whether Plaintiffs theory will ultimately
prevail. Rather, the question is whether Plaintiffs have demonstrated they have common
evidence capable of proving their theory of impact on a class-wide basis. The court concludes
they have met this burden. The court first discusses the documentary and testimonial evidence
Plaintiffs provide, before evaluating Singer’s expert report. The court then explains why it finds
PPC’s class certification and Daubert arguments unpersuasive.
a. Documentary and Testimonial Evidence
In support of their theory of impact, Plaintiffs’ Motion presents class-wide documentary
and testimonial evidence demonstrating the alleged conspiracy suppressed Grower pay. For
example, a Tyson manager, one of PPC’s alleged co-conspirators, testified concerning the
economic logic motivating the NPA. 209 He acknowledged that if another Integrator was
attempting to recruit one of Tyson’s Growers, Tyson would be incentivized to increase the
Grower’s pay to prevent them from switching Integrators. 210 He then acknowledged that
measures to reduce the chances of a Grower being recruited by another Integrator would reduce
the chances Tyson would have to pay the Grower more to retain them. 211 Further supporting the
effects of the NPA, an email between PPC employees discussed reluctance to hire Growers from

209

Motion for Class Certification at 27.

210

Id. (quoting Dkt. 454-3, Exhibit 32).

211

Id.

35

Koch, a co-conspirator Integrator, because it would “start another war with Koch, meaning
[Koch] will up their pay more and we will lose current growers.” 212
Concerning the other leg of the alleged Overarching Agreement, Plaintiffs also present
class-wide documentary evidence demonstrating the impact of the ISA. For example, an email
exchange between executives at two of PPC’s co-conspirators discusses compensation
adjustments in new Grower contracts and their respective plans to “match” each other. 213
Likewise, an email between executives at PPC and several of its alleged co-conspirator
Integrators confirmed “we are all in about the same place” concerning Grower compensation. 214
At step two of their impact theory, Plaintiffs offer class-wide documentary and
testimonial evidence demonstrating that pay suppression was experienced broadly across the
class. 215 As discussed above, Plaintiffs provide documentary evidence the alleged Overarching
Agreement, through the NPA and ISA, was applied broadly across Integrators. 216 Further,
Grower compensation was standardized based on “take-it-or-leave-it” contracts, with final pay at
each Complex determined by the so-called tournament system. 217 Under Plaintiffs’ theory, these
structural aspects of the industry demonstrate impact would be commonly felt throughout the
class.

212

Id. (quoting Dkt. 454-3, Exhibit 33).

Id. (quoting Dkt. 454-3, Exhibit 5). The court notes Plaintiffs do not provide the full quotation in their Motion.
In the Exhibit, the executive from Perdue states, “We risk losing quite a bit of housing to the new Tyson program so
we are countering.” Dkt. 454-3, Exhibit 5. Whether this piece of evidence supports Plaintiffs’ theory or undermines
it, for Rule 23(b)(3) purposes, the relevant consideration is that it applies on a class-wide basis.
213

214

Id. (quoting Dkt. 454-3, Exhibit 27).

215

Id. at 29.

216

Id. at 20; Singer Report ¶¶ 99–104.

Motion for Class Certification at 20. Recall that total compensation distributed at each Complex through the
tournament system equaled the average base pay of the Complex. See Complaint ¶ 148.
217

36

Additionally, Plaintiffs present testimonial evidence supporting Singer’s econometric
analysis purportedly demonstrating a nationwide pay structure. This is integral to Plaintiffs’
theory because it demonstrates “Grower pay is sufficiently interconnected that pay suppression
would be expected to be felt broadly across the Class.” 218 As Plaintiffs explain, concerns about
“internal equity” motivated Integrators to “compensate similarly situated Growers similarly
across Complexes.” 219 For example, executives from Sanderson, a co-conspirator Integrator,
testified the company paid all of its Growers the same and when it increased Grower contract
pay, it would increase “it across the entire company.” 220 Representatives from Peco, another coconspirator Integrator, also testified to uniform pay raises to all Growers at all Complexes. 221
Likewise, PPC representatives testified Grower pay was standardized within a Complex based on
housing-type, and employees would compare their compensation to sister Complexes to ensure
internal equity. 222
b. Expert Report and Econometric Evidence
Plaintiffs draw heavily on the expert economic and econometric opinions in Singer’s
Report to demonstrate common issues predominate in their showing of antitrust impact.
According to Singer, the “standard two-part method” he employs uses “evidence and analyses
common to the Class” and demonstrates “the suppression of Grower compensation due to the
alleged Overarching Agreement and its constituent parts . . . can be shown to have impacted all

218

Motion for Class Certification at 29.

219

Id.

220

Singer Report ¶ 266.

221

Id.

222

Id. ¶¶ 275–76.

37

or virtually all class members located in each and every geographic region around the
country.” 223
At the first step, Singer uses separate multiple-regression analyses 224 to demonstrate the
effect on Grower pay of the NPA and the ISA. 225 Using this “standard” econometric method for
comparing prices during an alleged conspiracy period with a benchmark period absent the
conspiracy, 226 Singer isolates the effect on Grower pay of the NPA through analysis of the
“natural experiment” resulting from the so-called “War on the Shore.” 227 The War on the Shore
involved a “temporary breakdown” of the NPA between integrators in Delmarva. 228 From
approximately March 2013 to December 2015, Integrators with Complexes in the region “began
to cheat” on the alleged NPA by recruiting Growers from each other. 229 According to Singer’s
analysis, the rate of Growers switching from one Integrator to another “more than doubled
during the ‘War on the Shore’ period as compared to the No-Poach period that came before
it.” 230
The Delmarva natural experiment allows Singer to “test the hypothesis that, holding other
relevant factors affecting Grower compensation constant, Integrators allegedly engaged in the
alleged [NPA] before the War paid lower prices to Growers than during the period of [NPA]

223

Singer Report ¶ 245.

“Multiple-regression analysis is a statistical tool used to determine the relationship between an unknown variable
(the ‘dependent’ variable) and one or more ‘independent’ variables that are thought to impact the dependent
variable.” In re Urethane, 768 F.3d at 1260 (quoting Saks, Michael J., et al., Reference Manual on Scientific
Evidence 179, 181 (2d ed. 2000)).
224

225

Motion for Class Certification at 28.

226

Singer Report ¶ 229.

227

Motion for Class Certification at 28.

228

Id. Delmarva refers to a region spanning portions of Delaware, Maryland, and Virginia. Singer Report ¶ 55.

229

Singer Report ¶ 229.

230

Id. ¶ 244.

38

breakdown . . . and the post-period of higher compensation (relative to the No-Poach period) that
followed it.” 231 Singer’s regression analysis finds—after controlling for variables such as chicks
per flock, flock age, flock weight, feed conversion, local wages, local temperatures, and local
fixed effects—the NPA suppressed Grower pay between 4 and 5.2 percent. 232 He further
concludes, due to the similarities of Growers and Integrators throughout the country, the analysis
indicates the NPA suppressed Grower compensation “in comparable magnitudes nationwide.” 233
Singer constructs another multiple-regression model to isolate and analyze any effects on
Grower Pay of the ISA. 234 In the model, he identifies and analyzes four “benchmark Integrators”
who were not parties to the ISA—they neither participated in Agri Stats nor engaged in direct
sharing of Grower compensation information. 235 Controlling for similar variables as the NPA
models, Singer identifies the effect of the ISA by comparing the Grower pay for the benchmark
Integrators with that of the co-conspirator Integrators. 236 Based on the model, Singer estimates
the ISA suppressed Grower pay between 4.8 and 6.9 percent. 237
Having shown the Overarching Agreement’s effect on Grower pay through class-wide
evidence, Singer then moves to step two where he demonstrates with common proof that those
effects were felt broadly throughout the class. 238 He does this using two econometric techniques
commonly used for demonstrating the broad impact of an alleged antitrust conspiracy. 239 First,

231

Id. ¶ 229.

232

Motion for Class Certification at 28; Singer Report ¶ 238.

233

Singer Report ¶ 242.

234

Motion for Class Certification at 28; Singer Report ¶¶ 209–28.

235

Motion for Class Certification at 28.

236

Id.

237

Id.

238

Id. at 29.

239

Singer Report ¶¶ 246–47.

39

Singer runs an in-sample prediction on both the NPA and ISA regressions to compare “the prices
that Growers were actually paid to the prices they would have been paid in a ‘but-for’ world
absent the alleged conduct at issue.” 240 Second, he analyzes the impact of the challenged
conduct using common evidence to determine the existence of a pay structure. 241
The in-sample prediction method is a standard technique used to test whether the impact
of an antitrust conspiracy is widespread. 242 Using the NPA and ISA regression models, Singer
predicts the “but-for” pay a Grower would have received for each transaction in the database—in
other words, the pay a Grower would have received for each flock in a world without the NPA
and ISA. 243 He then compares the “but-for” pay for each transaction to the actual pay the
Grower received. 244 If the “but-for” pay is greater than the actual pay the Grower received,
Singer concludes the flock was impacted by the challenged conduct. 245 Singer conducted the
analysis at both the Grower and the Complex level and found that, depending on the regression
sampled and the level of analysis, between 95 and 100 percent of proposed class members were
impacted. 246
Singer also assesses widespread impact by using an econometric technique known as
correlation analysis to determine the existence of a pay structure. 247 This is a standard

240

Id. ¶ 248.

241

Id. ¶ 257.

Motion for Class Certification at 30–31 (citing Olean Wholesale Grocery Coop., Inc. v. Bumble Bee Foods, LLC,
31 F.4th 651, 672 (9th Cir. 2022); In re Capacitors Antitrust Litig. (No. III), No. 17-md-02801, 2018 WL 5980139,
at *7–9 (N.D. Cal. Nov. 14, 2018); In re Domestic Drywall Antitrust Litig., 322 F.R.D. 188, 217 (E.D. Pa. 2017); In
re Korean Ramen Antitrust Litig., 13-cv-04115, 2017 WL 235052, at *6 (N.D. Cal. Jan. 19, 2017); In re Broiler
Chicken, 2022 WL 1720468, at *10, *13).
242

243

Id.

244

Id.

245

Id.

246

Id.

247

Id. at 29–30.

40

methodology regularly used in antitrust litigation for demonstrating impact with class-wide
evidence. 248 As Singer explains, after first finding through the regression analysis in step one
that the challenged conduct generally suppressed Grower compensation, the identification of a
pay structure offers class-wide evidence the challenged conduct would “transmit” the pay
suppression “broadly across the class.” 249 This test measures “the extent to which an increase in
average compensation paid to Growers generally is statistically associated with an increase in
compensation received by the individual Grower.” 250 Singer’s analysis finds Grower pay is
highly correlated across Complexes, Integrators, regions, and the industry. 251 He finds “a one
cent rise in average Grower compensation at the [C]omplex, Integrator, regional, or industry
level is associated with approximately a one cent raise for an individual Grower.” 252 Singer
concludes these tests “provide direct evidence of a compensation structure,” meaning the
suppressive effect of the alleged Overarching Agreement “would be expected to affect the
compensation of all Growers and not be contained to individual Growers, complexes,
Integrators, or regions.” 253
In addition to his econometric analysis, Singer also offers class-wide evidence applying
standard principles of economic theory to record evidence. For example, in support of his
conclusion concerning an industry-wide compensation structure, Singer evaluates documentary

248
Singer Report ¶ 255 (citing In re High-Tech Emp., 985 F. Supp.2d at 1206 (“Plaintiffs noted that Dr. Leamer’s
approach followed a roadmap widely accepted in antitrust class actions that uses evidence of general price effects
plus evidence of a price structure to conclude that common evidence is capable of showing widespread harm to the
class.”)).
249

Id.

250

Id. ¶ 257 (emphasis in original).

251

Motion for Class Certification at 30.

252

Singer Report ¶ 259.

253

Id.

41

and testimonial evidence indicating Integrators sought to compensate Growers uniformly, both
between Complexes of the same Integrator and between Complexes of different Integrators.
According to Singer, the record evidence is consistent with the economic literature discussing
“internal equity.” 254 Internal equity, also known as “wage compression,” is a well-established
economic principle that, to avoid discontent, “employers structure pay such that employees doing
comparable work receive similar compensation.” 255 Singer concludes the record evidence,
corroborated by his econometric analysis, demonstrates the co-conspirator Integrators
“endeavored to keep pay tethered across their Complexes to avoid Grower discontent.” 256
In sum, Singer’s report offers common proof—through econometric models and
economic theory—capable of demonstrating the class-wide impact of the alleged Overarching
Agreement.
c. The Court’s Conclusions and PPC’s Arguments
The court now turns to PPC’s arguments that individual questions of impact will
predominate and that Singer’s opinions are inadmissible. Each of the arguments PPC raises in
opposition to Plaintiffs’ predominance showing suffer from the same fatal flaw: they may pose a
challenge to Plaintiffs’ ability to prevail at summary judgment or trial, but fundamentally do so
through arguments and evidence common to the class. As such, PPC’s arguments fail to
undermine Plaintiffs’ contention that its impact theory is susceptible to class-wide proof.
Relatedly, PPC’s overlapping arguments against the admissibility of Singer’s opinions
suffer from a similar common flaw: they do not undermine the reliability of Singer’s
methodology, but rather present competing expert opinions that challenge the persuasiveness of

254

Motion for Class Certification at 29.

255

Singer Report ¶ 256.

256

Motion for Class Certification at 29; Singer Report ¶¶ 264–67.

42

Singer’s analysis. Fundamentally, PPC “asks the [c]ourt to take sides in a dispute between
experts about the intricacies of econometric modeling.” 257 However, this “is not the proper
function of a Daubert motion. This is not a case in which an expert is unable to articulate a
rationale for his methodology; nor is it a case where the proffered rationale is patently flawed or
unreasonable.” 258 Singer uses methods and techniques commonly employed by experts in
antitrust litigation and adequately explains the bases for the subjective decisions he made when
conducting his analysis. PPC’s arguments may render that analysis less persuasive to a jury, but
they do not demonstrate it is so unreliable as to be inadmissible.
PPC’s impact related arguments broadly fall into three categories: (1) general arguments
concerning Plaintiffs’ inability to prove impact with common evidence, (2) impact arguments
specific to the NPA, and (3) impact arguments focused on the ISA. The court addresses each in
turn.
i. General Impact
PPC argues Plaintiffs cannot show all or nearly all class members were impacted by the
alleged conspiracy with common evidence because the market for Grower services is local and
there is wide variance in Grower pay. 259 According to PPC, to demonstrate common issues
predominate in a wage-suppression case, “Plaintiffs must adduce ‘evidence that the
compensation structures of the defendants in the pertinent industry were so rigid that the
compensations of all [nationwide] class members were tethered together.” 260 PPC argues its

Miami Prods. & Chem. Co. v. Olin Corp., 1:19-CV-00385 EAW, 2023 WL 8946114, at *8 (W.D.N.Y. Dec. 28,
2023) (quoting In re Vitamin C Antitrust Litig., No. 05-CV-0453, 2012 WL 6675117, at *8 (E.D.N.Y. Dec. 21,
2012)).
257

258

Id.

259

Opposition to Class Certification at 34.

260

Id. at 35 (quoting In re Ry. Indus. Emp. No-Poach Antitrust Litig., 395 F.Supp. 3d 464, 514 (W.D. Pa. 2019)).

43

experts’ analysis demonstrates Grower pay was not tethered nationwide and Singer’s models
finding a pay structure are too flawed and unreliable to be accepted as common proof. 261 The
court disagrees.
PPC asserts analysis of Grower pay data reveals “extensive pay variance” between
different types of housing within the same Complex, between similar housing classes across the
same Integrator, between Integrators, and across different states. 262 This variance is expected
because, as PPC argues, the market for broiler-grow-out services is local and Grower pay is
determined at the local Complex level. 263 PPC’s experts, McCrary and Saravia, provide graphs
purportedly demonstrating the wide variation in Grower pay during the class period. 264 They
argue the graphs, “on their face,” refute Plaintiffs’ documentary and qualitative evidence that
Grower pay is tethered. 265 Further, PPC contends Plaintiffs’ assertions about “internal equity”
are based on “flimsy evidence and speculative inferences” that do not rebut the evidence in
PPC’s pay data and graphs. 266
In its Motion to Exclude, PPC further explains what it believes to be the failings in
Plaintiffs’ and Singer’s effort to prove the existence of a pay structure. 267 Saravia contends
Singer’s pay structure opinions are unreliable because “a simple visualization” of Grower pay
data demonstrates Grower pay does not move in “lock-step” throughout the country. 268 Saravia

261

Id. at 34.

262

Id. at 35.

263

Id. at 13.

264

Id. at 14.

265

Id. at 35.

266

Id.

267

Motion to Exclude at 14.

268

Id. at 14–15.

44

also argues Singer’s pay structure regression fails a falsification test, meaning it is “rigged” to
always find a pay structure even if run using data for which no structure exists. 269
PPC’s arguments concerning Plaintiffs’ common evidence of a pay structure do not
defeat predominance, nor demonstrate that Singer’s opinions are unreliable. As an initial matter,
PPC’s argument that the relevant market is local and not national presents a question of fact that
will be proven or disproven through evidence common to the class. 270 Plaintiffs allege a
nationwide market supported by evidence common to the class. The parties present competing
narratives about whether that is correct or not. It will not require individualized inquiry to
determine whether proposed class members are part of a nationwide market or a local market. If
the market is not nationwide, Plaintiffs’ claim fails—that will be common to the class. PPC’s
arguments on market definition pose a “challenge to the persuasiveness of Plaintiffs’
methodology,” a matter typically left to the jury, and do not defeat predominance. 271
PPC’s arguments concerning Plaintiffs’ pay structure evidence are similarly misplaced.
Plaintiffs present a variety of evidence in support of their showing of a nationwide Grower pay
structure. Some of the evidence is documentary, some testimonial, and some drawn from
Singer’s expert opinions. PPC may be correct that the evidence is “flimsy” 272 or fails to show
the purported nationwide pay structure, but that is not the relevant question at this stage. The
unifying thread in Plaintiffs’ evidence on impact—and PPC’s opposition—is it is common to the
class. If Plaintiffs present testimony from witnesses attempting to establish the co-conspirators
concerns about internal equity, PPC can discredit that through cross-examination or with its own

269

Id. at 16.

270

See Reazin, 899 F.2d at 975 (“Market definition is a question of fact.”) (citation omitted).

Occidental Petroleum Corp., 69 F.4th at 1179 (“[A] challenge to the persuasiveness of Plaintiffs’ methodology
for determining market power ‘is, in general, a matter for the jury.’”) (quoting Tyson Foods, Inc., 577 U.S. at 459).
271

272

Opposition to Class Certification at 35.

45

witnesses. But that showing will be common to the class. Similarly, PPC’s graphs purportedly
demonstrating the variance in Grower pay is evidence common to the class; it does not require
individualized inquiry.
Further, PPC’s Daubert challenge to the reliability of Singer’s pay structure analysis falls
short. PPC’s experts largely do not engage with what Singer’s pay structure regression purports
to do. PPC’s experts argue Singer’s opinion that nationwide Grower pay is tethered together is
undermined by a “simple visualization of the Grower pay data,” as presented in their graph
showing variances in Grower pay. 273 However, Singer does not assert all Growers nationwide
are paid at the same level. Rather, his pay structure regression demonstrates “changes in Grower
pay are transmitted broadly across Growers, while allowing for levels of Grower pay to vary
based on objective criteria, such as local taxes, land, and utility costs.” 274 The raw variation in
Grower pay across time and place is not relevant to what Singer purports to show with his pay
structure regression. 275
PPC’s contention that Singer’s pay structure regression is flawed because it fails a
falsification test is similarly not persuasive for Rule 702 and Daubert purposes. In their
Opposition to PPC’s Motion to Exclude, Plaintiffs explain there are infirmities in Saravia’s
falsification test because she runs the test using data from Complexes that have a pay structure,
manipulates the results by running the test on small datasets, and “introduces error when she
includes the dependent variable [the grower’s compensation regressed on] in the construction of

273

Motion to Exclude at 14–15.

Plaintiffs’ Class Certification Reply at 19; Dkt. 500, Plaintiffs’ Opposition to Defendant PPC Pride
Corporation’s Motion to Exclude Certain Opinions of Plaintiffs’ Expert Witness Hal J. Singer Pursuant to Federal
Rule of Evidence 702 (Plaintiffs’ Opposition to Motion to Exclude) at 26.
274

The court also observes Singer’s various regression models control for factors contributing to the variance in
Grower pay levels.
275

46

the independent variable [the average of all other growers].” 276 Resolving this battle of the
experts is not the appropriate role of the court on a Daubert motion. Singer relies on a reliable
methodology which, based on his explanations and responses to PPC’s challenges, he has more
likely than not reliably applied to the data in this case. 277 That meets the threshold for
admissibility. It is for the jury “to evaluate the reliability of the underlying data, assumptions,
and conclusions” and determine whether they are persuasive. 278
PPC also challenges Plaintiffs’ evidence that the NPA and ISA were implemented
broadly as “anecdotal, out of context, and unpersuasive.” 279 PPC argues Singer ignores evidence
of the localized nature of the relevant markets and selectively focuses on a small portion of the
documents produced to support his conclusions concerning impact. 280 PPC asserts
individualized inquiry will predominate because only some Integrators used Agri Stats data when
setting Grower pay, and those Integrators used this data in different ways. 281 Concerning direct
pay information exchanges, it asserts “there is no evidence that 21 integrators nationwide agreed
to share pay information directly,” but only discrete instances in specific locations at specific
times. 282 Similarly, evidence of the NPA, at best, only supports the conclusion there were
“limited or sporadic” understandings at a limited number of Complexes at specific points in
time. 283 Singer’s analysis of the Delmarva region does not support the conclusion that a NPA

276

Plaintiffs’ Opposition to Motion to Exclude at 26–27.

See In re Urethane, 251 F.R.D. at 638 (collecting cases) (noting evidence of a “standardized pricing structure” is
a reliable methodology commonly used to establish antitrust impact because it “presumably establishes an
artificially inflated baseline” and “provides generalized proof of class-wide impact”).
277

278

In re Urethane, 768 F.3d at 1263 (citation omitted).

279

Opposition to Class Certification at 35.

280

Id. at 35–36.

281

Id. at 36.

282

Id.

283

Id.

47

was implemented nationwide. 284 Lastly, PPC argues its pay data graphs demonstrate the usage
of a tournament system to determine Grower pay does not imply that Grower pay was “tethered
together.” 285
Each of these arguments fail to refute Plaintiffs’ contention that evidence of the broad
implementation of the respective agreements is susceptible to common proof. PPC itself largely
proves this point with its assertion that the evidence is “anecdotal, out of context, and
unpersuasive.” 286 Those characterizations may be accurate, but that is for a trier of fact to
determine. 287 The points PPC raises in its Opposition do not indicate individual questions will
predominate on the question of impact. Rather, the arguments would apply with common force
to the entire class. Should a jury find PPC’s arguments persuasive, it would constitute a “failure
of proof on [the] common question” of nationwide impact. 288 Further, PPC’s citation to In re
Aluminum Warehousing Antitrust Litigation for the proposition that courts reject efforts to
establish class-wide antitrust injury on documentary evidence alone is inapt. 289 Plaintiffs here do
no rely solely on documentary evidence. They present documentary, testimonial, qualitative
economic analysis, and quantitative econometric modeling to support their theory of common
impact. In these circumstances, “courts have long noted that statistical and anecdotal evidence

284

Id.

285

Id

286

Id. at 35.

287
See Tyson Foods, Inc., 577 U.S. at 459 (“Once a district court finds evidence to be admissible, its persuasiveness
is, in general, a matter for the jury.”).
288

Id. at 457.

Opposition to Class Certification at 36 (citing In re Aluminum Warehousing Antitrust Litig., 336 F.R.D. 5, 50
(S.D.N.Y. 2020)) (noting courts “have consistently rejected attempts to establish classwide antitrust injury based on
documentary . . . alone”).
289

48

must be considered in tandem.” 290 PPC’s general arguments concerning impact do not defeat
predominance.
ii. Impact and the NPA
In its Opposition and Motion to Exclude, PPC presents several arguments concerning
Plaintiffs’ inability to show antitrust impact with common proof based on the NPA. PPC first
asserts class certification would be inappropriate due to the large number of putative class
members who could not have been injured by the NPA. 291 Next, PPC contends individualized
inquiry would predominate concerning any impact from the NPA because the market for Grower
services is local, not nationwide. 292 Last, PPC challenges the admissibility of Singer’s opinions
concerning the impact of the NPA. 293
PPC asserts the class cannot be certified based on the NPA because a large percentage of
Growers could not have been impacted by the alleged agreement. 294 According to PPC, 15percent of Growers annually were located in areas with only one Integrator—meaning they
“could not be ‘poached’ even assuming the existence of a [NPA]”—and, even accepting Singer’s
evidence, only about half of the 147 plants operated by Integrators were party to an alleged
NPA. 295 PPC contends that, though the Tenth Circuit has not ruled on whether the presence of

In re High-Tech Emp., 985 F. Supp.2d at 1217; see also In re Air Cargo Shipping Servs. Antitrust Litig., No. 06MD-1175, 2014 WL 7882100, at *43 (E.D.N.Y. Oct. 15, 2014) (“[E]xpert testimony . . . should be viewed in
conjunction with the plaintiff’s other evidence.”).
290

291

Opposition to Class Certification at 25–26.

292

Id. at 27–29.

293

Id. at 30–31.

294

Id. at 25.

295

Id. at 26.

49

uninjured class members warrants denial of certification, 15-percent exceeds the “de minimis”
threshold adopted in certain other circuits and precludes certification here. 296
The court is skeptical the Tenth Circuit has not offered guidance on this question. 297
However, the court need not resolve the issue because PPC’s argument concerning uninjured
class members fails to engage with Plaintiffs’ theory of impact. Plaintiffs allege all class
members were injured by the NPA, whether or not they would have or could have switched
Integrators, because the anticompetitive effects of the Agreement—suppression of Grower pay—
were transmitted broadly across the class. 298 Plaintiffs support their theory of widespread impact
with various forms of evidence—including Singer’s NPA regression and pay-structure
analysis—which, as discussed above, are common to the class. Further, Plaintiffs’ theory and
evidentiary showing is consistent with other courts that have found the anticompetitive effects of
a no-poach agreement are transmitted broadly, not just to those who may have been recruited or
switched Integrators. 299 PPC’s argument about uninjured class members presupposes a theory of
impact distinct from the one Plaintiffs set forth. A jury may find PPC’s theory more compelling,
but that would be class-wide evidence that Plaintiffs have failed to prove an element of their
claim.

296

Id.

See Occidental Petroleum Corp., 69 F.4th at 1185 (holding a class “including a significant portion of members”
who could not have been harmed by the challenged conduct should not be certified but certification is still
appropriate for a class that “consists largely (or entirely, for that matter) of members who are ultimately shown to
have suffered no harm” because failure to show antitrust injury does not result in “a myriad of individual inquiries
but rather a verdict in [Defendant’s] favor”) (internal quotations and citations omitted).
297

Singer Report ¶ 95 (noting “a No-Poach agreement would tend to have widespread compensation suppression
effects across all Growers, not just the compensation for Growers who would have been poached in a but-for world .
. . .Agreement to lessen competition for Growers therefore suppress the compensation paid to Growers generally,
not just the wages of those Growers whose mobility is directly suppressed by the alleged No-Poach agreement”).
298

See In re High-Tech Emp., 985 F.Supp. 2d at 1192 (considering documentary, economic, and econometric
evidence to conclude “all [] employees—not just those who would have received cold calls but for the antisolicitation agreements—may have been impacted by the agreements”).
299

50

Next, PPC repeats its argument that, because the market for Grower services is local and
not nationwide, impact from any alleged NPA would require individualized inquiry. 300
Challenging Singer’s analysis, PPC argues the geographic scope of the market is local and not
national because “[n]inety three percent of all growers are located within 50 miles of the plant
they serve” meaning “opportunities for growers to switch Integrators are limited to the
surrounding plants in their local area.” 301 Supporting this analysis, PPC’s experts rebut Singer’s
opinions with their own economic arguments about the high correlation between Grower pay and
local factors. 302 PPC asserts Singer “fails to perform any quantitative analysis to support his
erroneous opinion that the geographic market is national and otherwise ignores all of this data
and economic theory demonstrating the absence of a national market.” 303
Notwithstanding this assertion, PPC addresses Singer’s quantitative analysis and argues
his NPA in-sample regression is flawed and unreliable “because it fails to isolate, and thus does
not reliably quantify the effect of any [NPA].” 304 According to PPC, the regression cannot be
used to measure widespread impact because it uses pay data from only Delmarva. 305 PPC asserts
Singer offers no reliable methodology for extrapolating the results of the NPA regression out to
the broader class and ignores characteristics distinguishing Delmarva from the rest of the
country. 306 PPC’s expert also conducts his own analysis purportedly using Singer’s regression

300

Opposition to Class Certification at 27–29; Motion to Exclude at 29–32.

301

Opposition to Class Certification at 28; Motion to Exclude at 30.

302

Opposition to Class Certification at 28; Motion to Exclude at 30.

303

Motion to Exclude at 31.

304

Opposition to Class Certification at 30; Motion to Exclude at 26–28.

305

Opposition to Class Certification at 30; Motion to Exclude at 26–28.

306

Motion to Exclude at 27.

51

and argues the results demonstrate Singer’s models are unreliable because they show changes to
Grower pay outside Delmarva when they should not. 307
In response, Plaintiffs and Singer highlight purported defects in PPC’s expert’s test and
explain why the NPA regression results can be extrapolated nationwide. 308 According to
Plaintiffs, PPC’s falsification test does not actually use Singer’s model because the expert
arbitrarily introduces an additional variable such that it has “no meaningful interpretation or
application to Dr. Singer’s model.” 309 Concerning the application of the NPA regression results
to the broader class, courts uphold the use of extrapolation techniques where, as here, they are
used to prove impact and damages—not liability—through common evidence. 310 Singer also
does not simply assume the characteristics of Growers inside Delmarva are comparable to those
outside. Rather, he analyzes evidence and explains the basis for his opinion that Growers are
similarly situated—they grow the same type of poultry during the same time periods, under
similar contracts, for the same or similar Integrators—such that usage of this yardstick is
appropriate. 311 These arguments and explanations satisfy the standard for reliability and
admissibility.
None of PPC’s arguments defeat Plaintiffs’ showing that impact from the NPA is
susceptible of common proof, nor do they sufficiently undermine the reliability of Singer’s
methods. Plaintiffs and Singer do not dispute that most Growers are located within 50 miles of

307

Id. at 28.

308

Plaintiffs’ Opposition to Motion to Exclude at 20–24.

309

Id. at 22.

Id.; see also In re Urethane, 768 F.3d at 1257 (distinguishing use of extrapolation models used to prove liability
[antitrust violation], which may result in an improper “trial by formula,” from permissible uses such as estimating
damages).
310

311

Plaintiff’s Opposition to Motion to Exclude at 22–23.

52

their respective Complex, but they offer evidence demonstrating Growers can and do relocate in
certain circumstances. Further, Plaintiffs offer common evidence—such as Singer’s pay
structure analysis and NPA regressions—demonstrating that, after controlling for local variables,
Grower pay was “tethered together nationwide.” 312 As discussed, PPC’s assertion that Singer
fails to perform any quantitative analysis is inaccurate. Singer provides multiple econometric
analyses supporting his opinions concerning the common impact of the NPA. PPC’s arguments
that his “methodology is ‘unrepresentative or inaccurate,’” is a defense “itself common to the
claims made by all class members.” 313
PPC relies heavily on Wheeler v. Pilgrim’s Pride Corp. 314 to support its argument that
impact from the NPA cannot be shown through common evidence because of the local nature of
the market. 315 In Wheeler, similar to here, a putative class of growers alleged PPC violated the
Sherman Act through its participation in a no-poach and information sharing agreement in
northeast Texas and Arkansas. 316 Plaintiffs in Wheeler argued they could prove impact through
common proof because all Grower pay was determined by the tournament system and each
Grower in a particular tournament was paid according to the same base price. 317 Thus, without
further analysis, plaintiffs concluded any suppression of the average price paid for a specific
tournament due to the anticompetitive conduct would impact all Growers participating in that
tournament. 318

312

Plaintiffs’ Class Certification Reply at 25.

313

Occidental Petroleum Corp., 69 F.4th at 1178 (quoting Tyson Foods, Inc., 577 U.S. at 457).

314

246 F.R.D. 532 (E.D. Tex. 2007).

315

Opposition to Class Certification at 29.

316

Wheeler, 246 F.R.D. at 536.

317

Id. at 540.

318

Id.

53

The Wheeler court rejected this argument, concluding proof of injury would be
predominated by individual issues because of variation in pay between plants, and the location
and proximity of competing plants differed. 319 For example, the PPC plant in Dallas was outside
the competitive radius of the nearest Tyson plant so, even if there was a conspiracy, “the growers
near the Dallas plant would not benefit from competition between Tyson and Pilgrim.” 320 PPC
points to the Wheeler court’s conclusion and argues it is even more applicable here where
Plaintiffs allege a nationwide class: “[D]ue to geographic limitations some growers are unable to
switch from one complex or company to another, while some growers may theoretically do so.
The resulting conclusion is that Plaintiffs are unable to demonstrate this ‘fact of damages’
[antitrust injury] without delving into individualized traits of each complex and/or grower
locale.” 321
Though there is superficial appeal to this analogy, the substantial distinction in Plaintiffs’
theory of impact and the proof of common evidence here leads to a different conclusion. In
contrast to Plaintiffs in this case, the Wheeler plaintiffs offered almost no evidence
demonstrating impact but instead “assume[d] the fact of damages automatically flows from the
assumption that more competition would alleviate the alleged suppression of the base price.” 322
As has been discussed at length, Plaintiffs here present multiple pieces of detailed quantitative
and qualitative evidence capable of demonstrating the class-wide impact of the alleged NPA.
Singer’s NPA regression models compare Grower pay to a yardstick to reach an opinion about
the suppressive effect of the NPA. He conducts further economic and econometric analysis to

319

Id. at 540–41.

320

Id. at 541.

321

Id.

322

Id. at 540.

54

demonstrate a nationwide pay structure supporting the opinion that changes in Grower pay were
transmitted broadly throughout the class. Plaintiffs supplement these opinions with documentary
and testimonial evidence supporting the NPA and its common impact. Moreover, the Wheeler
plaintiffs advanced a theory of harm based on lost Grower profits that would have required
individualized inquiry into issues such as individual Grower costs. 323 Plaintiffs’ theory here,
based only on suppressed pay, does not require such inquiries. Thus, the court concludes
Wheeler does not persuasively apply to Plaintiffs’ impact showing in this case.
As discussed above, PPC’s experts may challenge the judgments Singer made in
constructing his models and conducting his analysis, but that is nearly always the case. Singer
relies on reliable methods, incorporating robust datasets, and provides rational explanations for
the decisions he made. PPC’s arguments go to the weight a trier of fact should give his opinions,
not their underlying reliability. Moreover, Plaintiffs’ definition of the market is a question of
fact and PPC’s contention that the market for Grower services is local, rather than national,
“present[s] class-wide rebuttal evidence.” 324 PPC’s arguments concerning impact and the NPA
again only bolster Plaintiffs’ demonstration that this is a question susceptible to common proof.
iii. Impact and the ISA
PPC also challenges Plaintiffs’ ability to show impact from the ISA through common
proof, arguing individualized issues predominate because the ISA is subject to the rule of reason
and Singer’s ISA regression is fatally flawed. 325 These arguments similarly fail to defeat
Plaintiffs’ Rule23(b)(3) showing.

323

Id. at 542.

324

Occidental Petroleum Corp., 69 F.4th at 1178.

325

Opposition to Class Certification at 32–34.

55

First, PPC’s assertion that the rule of reason applies to the ISA is inconsistent with
Plaintiffs’ theory of the case and overlooks Plaintiffs’ demonstration that, even if the rule of
reason applies, common issues predominate. 326 PPC likely is correct that information sharing
between competitors is not necessarily per se unlawful. 327 However, this fails to engage with the
theory Plaintiffs advance.
Plaintiffs allege PPC and its co-conspirators engaged in a conspiracy to suppress Grower
pay—the Overarching Agreement. 328 As alleged, the ISA is a sub-component of the
Overarching Agreement, not an independent claim under the Sherman Act. 329 Horizontal
conspiracies in restraint of trade, such as price-fixing or wage suppression, are typically
considered per se unreasonable. 330 Plaintiffs argue this is a per se violation but, in the event the
rule of reason applies, Plaintiffs present common evidence capable of proving the ISA
suppressed pay for the entire class under that standard. 331 The court need not determine which

326

Id. at 32.

Michael v. Intracorp, Inc., 179 F.3d 847, 859 (10th Cir. 1999) (“Mere exchanges of information, even regarding
price, are not necessarily illegal, in the absence of additional evidence that an agreement to engage in unlawful
conduct resulted from, or was part of, the information exchange.”) (citations omitted).

327

328

Motion for Class Certification at 8.

329

Id.

See Ohio v. American Express Co., 585 U.S. 529, 540–41 (2018) (“Typically only ‘horizontal’ restraints—
restraints ‘imposed by agreement between competitors’—qualify as unreasonable per se.”) (quoting Bus. Elec. Corp.
v. Sharp Elec. Corp., 485 U.S. 717, 723 (1988)).
330

Motion for Class Certification at 16–18; Plaintiffs’ Class Certification Reply at 22–23. Plaintiffs explain that if
the rule of reason applies, PPC and its co-conspirators’ collective market power and the competitive effects of the
challenged conduct will be demonstrated through common proof. Motion for Class Certification at 18–19. For
example, Singer offers class-wide evidence demonstrating the anticompetitive effects of the conduct in the form of
artificially suppressed pay. Id. There is also common evidence to prove the market for broiler-grow-out services is
nationwide, such as the co-conspirators’ use of nationwide Agri Stats data in establishing Grower pay, the fact
Growers sometimes can and do relocate, Integrators expand into new areas, and Singer’s analysis showing the
correlation of Grower pay nationwide. Id.
331

56

standard applies at this juncture but is satisfied Plaintiffs have demonstrated impact of the ISA is
susceptible to common proof under either. 332
Second, PPC argues Singer’s ISA regression should be excluded because it does not
isolate the effects of the alleged ISA and cannot reliably measure any harm. 333 PPC’s expert
conducts a falsification test, purportedly using Singer’s regression, to compare only the
Benchmark Integrators against each other and concludes Singer’s model fails the test because it
finds a difference in pay when there should not be one. 334 PPC also asserts Singer’s ISA
regression is “irredeemably flawed” because it does not control for housing density, “a critical
determinant of total Grower pay, particularly for the Benchmark Integrators.” 335
Neither of PPC’s arguments render Singer’s ISA regression inadmissible. Plaintiffs
explain PPC’s falsification test is invalid because, among other reasons, the test used is designed
to examine the “robustness” of a model by testing its sensitivity to “slight modifications in
assumptions.” 336 However, PPC’s test excludes “over 98 percent” of the data Singer used in his
model, which “is not a ‘slight’ change.” 337 In essence, PPC’s falsification test “uses a different
model than the one [it] purports to falsify.” 338 Concerning inclusion of the density variable,

332
PPC’s argument on this issue also underscores the court’s previous discussion concerning predominance and
antitrust violation—the first element of Plaintiffs’ claim. Whether at summary judgment or trial, much of the focus
will likely be on Plaintiffs’ ability to prove the existence of the Overarching Agreement. However, the central point
here is Plaintiffs’ success or failure in proving the Agreement turns on evidence common to the class. In their
Motion, Plaintiffs aver they will demonstrate with class-wide evidence that “[PPC] and its Co-Conspirators all
engaged in a reciprocal exchange of Grower pay rates through Agri Stats and direct interfirm exchanges of specific
Grower pay rates.” Motion for Class Certification at 16. If they fail to do that, individualized issues will not
predominate. Rather, it will be a common failure to prove an element of their claim.
333

Opposition to Class Certification at 33; Motion to Exclude at 19.

334

Opposition to Class Certification at 33; Motion to Exclude at 19.

335

Motion to Exclude at 20.

336

Plaintiffs’ Opposition to Motion to Exclude at 15.

337

Id. at 16.

338

Id.

57

Plaintiffs contend Singer’s model already controls for this factor through the use of other
variables, such as number of broilers in a flock. 339
Singer’s ISA regression applies an accepted methodology for measuring the impact of the
alleged ISA. He provides reasonable explanations for judgments made in constructing the model
and PPC’s arguments do not undermine its fundamental reliability. Though “the exclusion of
major variables or the inclusion of improper variables may diminish the probative value of a
regression model . . . such defects do not generally preclude admissibility.” 340 PPC’s challenges
go to the persuasiveness of Singer’s opinions and do not warrant exclusion.
d. Conclusion on Impact
Plaintiffs’ documentary and testimonial evidence, along with Singer’s Report offering
economic and econometric opinions derived from this evidence, demonstrates common issues
will predominate concerning antitrust impact. In support of its theory of class-wide impact,
Plaintiffs present communications and deposition testimony from PPC and its co-conspirators
purportedly discussing the setting of Grower pay. They offer similar evidence supporting the
impact of the NPA, such as statements reflecting the Integrators’ concerns about internal equity.
Plaintiffs bolster this evidence with Singer’s economic and econometric opinions. Singer’s NPA
and ISA regressions demonstrate the general suppressive effect on Grower pay stemming from
the challenged conduct. He then performs additional analyses, both qualitative and quantitative,
to demonstrate the existence of a nationwide pay structure—an integral link in Plaintiffs’ ability
to prove class-wide impact. Crucially for the Rule 23(b)(3) predominance analysis, each piece of

339

Id. at 17.

340

In re Urethane, 768 F.3d at 1260–61.

58

evidence Plaintiffs present in support of their theory of impact applies with common force across
the proposed class.
PPC’s arguments are largely not tailored to this standard. It raises many arguments
challenging aspects of Plaintiffs’ theory and the evidence they provide, but the arguments
universally pertain to the persuasiveness of Plaintiffs’ evidence. Indeed, PPC’s arguments
largely serve to bolster Plaintiffs’ predominance showing. At this stage, the question is “to what
extent issues susceptible to class-wide proof predominate over those requiring individual
inquiries—not whether such issues are likely to be resolved in Plaintiffs’ favor.” 341 PPC may be
correct, for example, that this is not a nationwide market or that there is no pay structure. If
accepted by a trier of fact, these arguments concerning Plaintiffs’ impact showing would likely
defeat Plaintiffs’ claim, but they would not require individualized inquiry. They would defeat
the claim with evidence common to the class. What PPC “alleges is ‘a fatal similarity—[an
alleged] failure of proof as to an element of the [P]laintiffs’ cause of action.’” 342 If a trier of fact
does not find Plaintiffs’ evidence persuasive, their claim simply fails.
3. Damages
The final element of Plaintiffs’ Sherman Act claim is damages. Having found Plaintiffs
demonstrated the first two elements of their claim—antitrust violation and impact—are
susceptible to common proof, the court could conclude Plaintiffs have satisfied their burden

341

Occidental Petroleum Corp., 69 F.4th at 1185.

342

Id. at 1179 (quoting Amgen Inc., 568 U.S. at 470).

59

under Rule 23(b)(3) and end the analysis here. 343 However, in the interest of completeness, the
court will evaluate whether Plaintiffs have shown damages present a common question capable
of class-wide proof.
Plaintiffs argue they present a method capable of calculating damages for the class as a
whole. 344 Plaintiffs’ method computes aggregate damages using the results of Singer’s ISA and
NPA regression models. 345 By multiplying the percent underpayment demonstrated by the
models to total Grower pay during the proposed class period, Plaintiffs conclude $924.24 million
in damages results from the ISA and $761.22 million results from the NPA. 346 As Plaintiffs
contend, this method is widely endorsed by courts, including the Tenth Circuit, and satisfies the
“low burden” the Supreme Court requires for damages calculations in antitrust cases. 347
In its Opposition, PPC asserts proof of damages is not susceptible to class-wide evidence
because Grower compensation is determined by a range of localized factors and therefore
Plaintiffs cannot calculate damages based on a common formula. 348 This argument mirrors
PPC’s arguments concerning the first two elements of Plaintiffs’ claim, which the court has
already rejected. Setting aside that individualized damages issues do not necessarily preclude

See, e.g., In re Urethane, 768 F.3d at 1255 (holding that after a district court finds common questions
predominate concerning antitrust violation and impact, “[t]he presence of individualized damages issues would not
change this result. Class-wide proof is not required for all issues. Instead, Rule 23(b)(3) simply requires a showing
that the questions common to the class predominate over individualized questions.”); In re Scrap Metal Antitrust
Litig., 527 F.3d 517, 535 (6th Cir. 2008) (“[E]ven where there are individual variations in damages, the requirements
of Rule 23(b)(3) are satisfied if the plaintiffs can establish that the defendants conspired to interfere with the freemarket pricing structure.”).
343

344

Motion for Class Certification at 31.

345

Id.

346

Id.

Id. at 31–32 (citing Comcast Corp. v. Behrend, 569 U.S. 27, 35 (2013) (noting damages calculations “need not be
exact,” though they must be consistent with Plaintiffs’ liability theory); In re Urethane, 768 F.3d at 1256 (affirming
class certification with common method for proving damages relying on “regression models (used to show impact)
and [] extrapolation models (used to estimate damages)”)).
347

348

Opposition to Class Certification at 39.

60

class certification, PPC’s argument does not engage with Plaintiffs’ burden at this stage and, if
accepted by a trier of fact, would serve as common evidence that Plaintiffs have failed to prove
an element of their claim.
Elsewhere in its Opposition, PPC cites Comcast in support of the proposition that,
because Singer’s models do not establish impact from the alleged Overarching Agreement, they
“cannot possibly establish that damages are susceptible of measurement across the entire class
for purposes of Rule 23(b)(3). 349 This argument misconstrues Plaintiffs’ theory and the holding
of Comcast. Plaintiffs allege the Overarching Agreement is comprised of two sub-components,
the NPA and the ISA. Singer’s models assess the impact and damages resulting from those subcomponents—not a separate liability theory. As discussed above, whether Plaintiffs’ evidence
persuasively proves the existence of the Overarching Agreement is a common issue that goes to
its ability to establish the first element of its claim. Moreover, Plaintiffs’ approach is not
foreclosed by Comcast. In Comcast, the Supreme Court rejected the use of a damages model
that did not isolate damages resulting from the alleged liability theory. 350 Here, Plaintiffs’ model
includes only the purported damages flowing from the alleged antitrust violation—the
Overarching Agreement to suppress Grower pay.
Accordingly, the court concludes Plaintiffs have demonstrated a method capable of
establishing class-wide damages through common proof.
4. Predominance Conclusion
The court concludes Plaintiffs meet their burden under Rule 23(b)(3) to establish issues
common to the class will predominate over any individual issues. As is common in

349

Id. at 9 (quoting Comcast Corp., 569 U.S. at 35).

Comcast Corp., 569 U.S. at 36 (rejecting damages model because it “failed to measure damages resulting from
the particular antitrust injury on which petitioners’ liability in this action is premised”).
350

61

Sherman Act § 1 cases alleging a horizontal conspiracy in restraint of trade, “common questions
predominate[] because the key elements of the [wage-suppression] claim—the existence of a
conspiracy and impact—raise[] common questions that [are] capable of class-wide proof.” 351
Though PPC challenges much of this class-wide proof, its challenges underscore the
predominance of these common issues.
Plaintiffs present documentary, testimonial, and economic evidence to support the alleged
antitrust violation that PPC and its co-conspirators engaged in a years-long nationwide
conspiracy to suppress Grower pay. A horizontal conspiracy of this nature “is the prototypical
example of an issue where common questions predominate, because it is much more efficient to
have a single trial on the alleged conspiracy rather than thousands of identical trials all alleging
identical conspiracies based on identical evidence.” 352 PPC’s challenges to the existence and
scope of the alleged conspiracy are likewise common to the class. Should these arguments be
compelling at summary judgment or trial, the result would be a “failure of proof as to an element
of the [P]laintiffs’ cause of action.” 353 Either the alleged nationwide conspiracy exists, or it does
not. Plaintiffs’ claim likely will prevail or fall in common based on the answer to that single
predominating question.
Similarly, Plaintiffs have shown through their broadly accepted two-step method that
antitrust impact presents issues susceptible to common proof. Plaintiffs present documentary,
testimonial, economic, and econometric evidence to demonstrate the sub-components of the

351

In re Urethane, 768 F.3d at 1254.

In re Broiler Chicken Antitrust Litig., 2022 WL 1720468, at *7 (quoting Kleen Prod. LLC v. Int’l Paper, 306
F.R.D. 585, 594 (N.D. Ill. 2015)); see also 7AA Wright & Miller, Federal Practice & Procedure § 1781 (3d Ed.
2014) (“[W]hether a conspiracy exists is a common question that is thought to predominate over the other issues in
the case and has the effect of satisfying the prerequisite in Rule 23(b)(3).”).
352

353

Occidental Petroleum Corp., 69 F.4th at 1179 (quoting Amgen Inc., 568 U.S. at 470).

62

Overarching Agreement—the NPA and the ISA—suppressed Grower pay. They then
demonstrate through common evidence that suppression was experienced broadly throughout the
class. PPC’s arguments may rebut the assumptions underlying Plaintiffs’ theory of impact or
challenge the persuasiveness of Plaintiffs’ evidence, but those challenges fail to establish that
common issues do not predominate. 354 Rather, PPC’s arguments would undermine Plaintiffs’
ability to prove class-wide impact. They would constitute “a failure of proof on the element of
antitrust impact [that] would end the litigation for all.” 355
Though Plaintiffs do not rely on an inference or presumption of impact, this case bears all
the hallmarks of an antitrust action for which courts routinely find impact involves
predominately common issues. “Under the prevailing view,” horizontal conspiracies to fix
prices or, as here, to suppress wages “affect[] all market participants, creating an inference of
class-wide impact even when prices are individually negotiated.” 356 The Tenth Circuit recently
cautioned against broad application of this presumption in all antitrust class actions, but noted
specific facts—“standardized pricing structure, the defendant’s price-fixing conspiracy, and the
artificially inflated baseline for pricing negotiations”—support “a reasonable conclusion that
‘price-fixing would have affected the entire market.’” 357 These considerations apply with equal
force, if not more, in this case.
Plaintiffs allege a horizontal conspiracy to suppress Grower pay, provide common
evidence purportedly demonstrating a nationwide pay structure, and demonstrate an artificially
suppressed baseline for Grower pay. Perhaps more compelling here, it is undisputed Growers do

354

See id. at 1184.

355

Id.

356

In re Urethane, 768 F.3d at 1254 (collecting cases).

357

Occidental Petroleum Corp., 69 F.4th at 1182 (quoting In re Urethane, 768 F.3d at 1255).

63

not negotiate their pay—base pay is set in standard form, take-it-or-leave-it contracts. The court
does not presume impact in reaching its decision, but this backdrop reinforces the conclusion that
impact in this case is susceptible to class-wide proof.
Last, and not essential to Plaintiffs’ Rule 23(b)(3) showing, Plaintiffs have established a
method capable of calculating class-wide damages. In accordance with established
methodologies broadly used in antitrust class-actions, Plaintiffs apply the output from the
respective NPA and ISA regression models to the total Grower pay during the class period to
calculate aggregate class damages. Further, given the predominance of common issues on the
elements of antitrust violation and impact, any individualized issues that may arise on this
element would not overwhelm the common issues in the case. The court has “a variety of tools”
available to address damages. 358
The court reiterates, its task at class certification is to determine “to what extent issues
susceptible to class-wide proof predominate over those requiring individual inquiries—not
whether such issues are likely to be resolved in Plaintiffs’ favor.” 359 PPC’s arguments may
challenge Plaintiffs’ ability to prevail on its claims, but that is a question for another day. For the

In re Capacitors Antitrust Litig., 2018 WL 5980139, at *9 (noting individual damages issues do not preclude
certification because the court can appoint a magistrate or special master to preside over damages proceedings, alter
or amend the class definition in response to trial developments, or request a trial plan from plaintiffs addressing how
“aggregate damages estimated from [an] expert’s report can [] be apportioned among the class members”).
358

359

Occidental Petroleum Corp., 69 F.4th at 1185 (citing Tyson Foods, Inc., 577 U.S. at 453).

64

question presently before the court, Plaintiffs have met their burden of proving issues susceptible
to class-wide proof predominate. 360

Following oral argument on the Motions, the parties submitted supplemental briefing concerning two issues that
arose during the hearing: (1) the significance for class certification purposes of adverse inferences Plaintiffs may be
entitled to, and (2) Plaintiffs’ class definition and whether a jury must find all 21 co-conspirators participated in the
alleged conspiracy. Dkt. 544, Pilgrim’s Pride Corporation’s Supplemental Memorandum of Law in Opposition to
Plaintiffs’ Class Certification Motion (PPC’s Supplement); Dkt. 545, Plaintiffs’ Supplemental Memorandum of Law
in Further Support of Plaintiffs’ Motion for Class Certification (Plaintiffs’ Supplement). First, Plaintiffs’ Motion
does not rely on any adverse inferences to support its Rule 23(b)(3) showing and, as discussed, the court concludes
they have demonstrated common issues predominate. The court need not determine at this stage whether Plaintiffs
are entitled to an adverse inference in connection to the deposition testimony of former PPC executives. The second
issue appears to largely be a misunderstanding concerning answers Plaintiffs’ counsel provided in response to
questions about the contents of a future jury verdict form and whether a jury must find all alleged co-conspirators
participated in the alleged conspiracy. PPC argues Plaintiffs’ counsel’s response demonstrated the class cannot be
certified and suggested an effort to recast the proposed class definition into one “whose scope is unknowable until
the jury enters a verdict. PPC’s Supplement at 6. In Plaintiffs’ Supplement, they affirm they are still alleging, and
will present evidence of, a nationwide conspiracy involving all 21 alleged co-conspirators impacting all Growers in
the proposed class. Plaintiffs’ Supplement at 7. The colloquy with the court about the verdict form concerned
“straightforward principles” of antitrust conspiracy law as reflected by model jury instructions. Id. This dispute
appears to arise from a misunderstanding about the nature of the discussion at the hearing and the court need not
determine at this stage the appropriate contents of potential jury instructions or verdict forms.
360

For the benefit of the parties, the court observes the cases PPC cites in support of its argument are distinguishable.
In Morris, the court denied class certification because the “crux of [the] litigation” was whether defendants had
offered a particular insurance policy provision required by state law to each class member, an inherently individual
inquiry. Morris v. Travelers Indem. Co. of America, 2006 WL 166597, at *8 (D. Colo. Jan. 19, 2006). The class
was “self defeating” because the court would have to consider the merits of the controversy—whether defendants
had violated the statutory requirement for each individual—before certifying the class. Id. Similarly, in Dafforn,
plaintiffs sought to certify a “fail-safe” class whose definition for inclusion in the class required members were
charged “an artificially fixed and illegal brokerage fee.” Dafforn v. Rousseau Assoc., Inc., 1976 WL 1358, at *1.
The court denied class certification because “a jury determination that defendants have charged no such illegal fees
would at the same time determine that there was no class,” which would evade res judicata and allow individuals to
relitigate claims. Id. at *2. Plaintiffs’ proposed class here does not suffer from such infirmities. The class is clearly
defined and ascertainable prior to a merits determination. As Plaintiffs affirm, and the court concludes above, they
present evidence capable of demonstrating through class-wide proof that each member of the proposed nationwide
class was impacted by the alleged conspiracy. Whether some of these members ultimately prove to be uninjured
does not render this an unknowable class, nor preclude certification. See Occidental Petroleum Corp., 69 F.4th at
1185 (“[A] class may still be properly certified even if it consists largely (or entirely, for that matter) of members
who are ultimately shown to have suffered no harm.”) (internal quotations and citation omitted). Further, even if the
evidence does not ultimately prove the involvement of a co-conspirator, a defendant can still “incur liability for a
conspiracy under § 1 of the Sherman Act so long as the defendant did not act unilaterally.” In re Urethane, 768 F.3d
at 1266 (citing Copperweld Corp. v. Indep. Tube Corp., 467 U.S. 752, 768 (1984)).

65

C. Rule 23(b)(3): Superiority
In addition to predominance, Rule 23(b)(3) requires Plaintiffs “show that a class action
would be ‘superior to other available methods for fairly and efficiently adjudicating the
controversy.’” 361 The Rule sets forth a “non-exhaustive” list of factors to guide the inquiry:
(A) the class members’ interest in individually controlling the prosecution or
defense of separate actions; (B) the extent and nature of any litigation concerning
the controversy already begun by or against class members; (C) the desirability or
undesirability of concentrating the litigation of the claims in the particular forum;
and (D) the likely difficulties in managing a class action. 362
Fundamentally, courts have observed a Rule 23(b)(3) class action “is superior when it allows for
the ‘vindication of the rights of groups of people who individually would be without effective
strength to bring their opponents into court at all.’” 363 The court concludes Plaintiffs have
demonstrated a Rule 23(b)(3) class action is the superior method for adjudicating this
controversy.
Each of the factors set forth in Rule 23(b)(3) weigh in favor of a finding of superiority.
Relevant to individual class members’ interest in controlling separate actions and the extent of
existing litigation, the litigation has been ongoing in this centralized forum for over three years
and class settlements have already been reached with all original Defendants except PPC. 364 As

361

Menocal v. GEO Grp., Inc., 882 F.3d 905, 915 (10th Cir. 2018) (quoting Fed. R. Civ. P. 23(b)(3)).

362
Id. (quoting Fed. R. Civ. P. 23(b)(3); Fed. R. Civ. P. 23(b) advisory committee’s note to the 1966 amendment).
The Tenth Circuit notes, “Although Rule 23(b)(3) states that these factors are pertinent to both superiority and
predominance, ‘most courts analyze [these factors] solely in determining whether a class suit will be a superior
method of litigation.’” Id. n.3 (quoting 2 William B. Rubenstein, Newberg on Class Actions § 4:64 (5th ed., Dec.
2017 update).
363

Id. (quoting Amchem Prods., 521 U.S. at 617).

See Dkt 1, Transfer Order from the Judicial Panel on Multidistrict Litigation; Order Preliminarily Approving of
Settlement with Tyson Defendants, Certifying the Settlement Class for Purposes of Settlement, and Appointing
Settlement Class Counsel; Order Preliminarily Approving Settlement with Perdue, Certifying the Settlement Class
for Purposes of Settlement, and Appointing Settlement Class Counsel; Order Preliminarily Approving Settlement
with Koch, Certifying the Settlement Class for Purposes of Settlement, and Appointing Settlement Class Counsel;
Order Preliminarily Approving Settlement with Sanderson, Certifying the Settlement Class for Purposes of
Settlement, and Appointing Settlement Class Counsel.
364

66

Plaintiffs highlight, “Few of the 24,354 members of the Class have opted out of the prior
settlements.” 365 Further, concentration of the litigation in this forum is desirable because most
proposed class members could not bear the costs of litigating the claims individually. 366 Even if
they could, due to the overlapping nature of the claims, evidence, and witnesses, individual
litigation would be “grossly inefficient, costly,” and “unnecessarily duplicative.” 367 Given these
considerations, the court concludes a Rule 23(b)(3) class action is the superior method “of fairly
and efficiently adjudicating the controversy.” 368
D. Remaining Daubert Challenges
The court addresses most of the arguments in PPC’s Motion to Exclude in the discussion
above. PPC’s remaining challenges and the court’s final conclusion on PPC’s Motion are set
forth here.
PPC argues substantial portions of Singer’s Report should be excluded because it
improperly presents disputed facts as expert opinion. 369 According to PPC, Singer
impermissibly “cloaks over 40 pages of disputed facts” as expert opinion by stating the
“evidence is ‘consistent’ with the alleged antitrust conspiracies.” 370 Further, PPC asserts Singer
improperly speculates about the mental state of Growers and Integrators and makes

365

Motion for Class Certification at 32.

366

Id.

367

In re Urethane Antitrust Litig., 237 F.R.D. at 453.

Fed. R. Civ. P. Rule 23(b)(3). PPC only briefly addresses superiority in its Opposition. Opposition to Class
Certification at 40. Repeating its prior arguments, it asserts superiority is not met due to the number of class
members “who could not have conceivably suffered any harm and the number of class members who have never
tried to switch or could not switch . . . .” Id. For the reasons explained above, this argument does not engage with
Plaintiffs’ theory of harm and is similarly not persuasive for the court’s superiority analysis.
368

369

Motion to Exclude at 32.

370

Id. (citing Singer Report ¶¶ 83–162).

67

impermissible credibility determinations about certain deposition testimony. 371 PPC argues
“[a]ll of Dr. Singer’s opinions in which he usurps the role of the jury by weighing evidence and
making credibility determinations . . . should be excluded.” 372
In their Opposition, Plaintiffs contend Singer’s opinions are admissible because he
employs a structure, conduct, performance (SCP) analysis commonly used by economists in
antitrust cases. 373 PPC’s challenge focuses on Singer’s analysis pertaining to the conduct prong
of the framework, where he considers record evidence and concludes the observed conduct is
“consistent with an alleged conspiracy to suppress the compensation for Broiler Grow-Out
services, and inconsistent with competition.” 374 Singer’s opinions view record evidence through
the lens of economic theory to explain why the challenged conduct is “inconsistent with the
‘hypothesis that each Defendant acted unilaterally in its own self-interest . . . .’” 375 For example,
he explains why participating in the NPA is against an Integrator’s self-interest in a competitive
market and how the ISA would be irrational absent the NPA. 376
The court agrees with Plaintiffs that Singer’s SCP analysis uses a reliable economic
framework that is “well accepted in this field.” 377 Though a layperson may understand portions
of record evidence on their face, they do not have the expertise required to understand the import
of that evidence as it pertains to principles of economics and competition. The court concludes

371

Id. at 32–33.

Id. at 33 (citing Singer Report ¶¶ 61–64, 69, 83–162, 229, 266–67, 285, Appendix 6; Singer Rebuttal ¶¶ 33–35,
41, 67, 69, 72, 88, 90–97, 101, 103, 106–07, 111–13, 130, 191, 202, 211, 230–34, Appendix 4).
372

373

Plaintiffs’ Opposition to Motion to Exclude at 36.

374

Id. (quoting Singer Report ¶ 186).

375

Id. (quoting Singer Report ¶¶ 200–01).

376

Id.

377

In re Urethane Antitrust Litig., No. 04-1616-JWL, 2012 WL 6681783, at *2 (D. Kan. Dec. 21, 2012).

68

“it would be helpful to a jury for an expert to put events into an economic context.” 378 To the
extent PPC believes Singer’s opinions are inconsistent with, or fail to properly consider, relevant
record evidence, “[v]igorous cross-examination, presentation of contrary evidence, and careful
instruction on the burden of proof are the traditional and appropriate means of attacking shaky
but admissible evidence.” 379
PPC’s sweeping request for exclusion of Singer’s opinions is premature and unnecessary
at this time. The entirety of Singer’s report will not be introduced as evidence at trial. Rather,
his opinions will come in through his direct testimony. Of course, Singer may not offer opinions
concerning the credibility of particular witnesses, nor may he opine on the ultimate issue of
whether a conspiracy existed. 380 However, without knowledge of the substance and form of
Singer’s future testimony, the proper mechanism for addressing these issues is for PPC to object
to any improper testimony at trial.
In sum, considering the totality of PPC’s Motion to Exclude, its challenges largely
present a classic “battle of the experts” appropriate for the trier of fact to resolve. It may not be
unreasonable at summary judgment or trial to conclude the opinions and analysis of PPC’s
experts are more persuasive or reliable than Singer’s. However, this does not mean Singer’s
opinions are so unreliable as to be inadmissible. Singer relies on established methodologies
widely used in antitrust litigation and draws from the same data and evidence used by PPC’s
experts. That PPC’s experts would reach different conclusions or make different decisions in

378
Id. at *3 (finding an economic expert’s SCP analysis concluding “certain conduct by the alleged conspirators is
consistent with” the alleged conspiracy is admissible).
379

Daubert, 509 U.S. at 596 (citing Rock v. Arkansas, 483 U.S. 44, 61 (1987)).

The court notes definitively stating a conspiracy exists is distinct from an expert opining that, based on economic
theory, certain conduct is “consistent” with the existence of a conspiracy or “inconsistent” with rational selfinterested actions.
380

69

conducting their analysis does not render Singer’s analysis unreliable. The fields of statistics and
econometrics are ultimately as much art as science. They entail considerable subjective
judgment in the manipulation of data to construct reasonably representative models. 381 The
discipline “require[s] the use of professional judgment” and “expert testimony is less likely to be
excluded because ‘challenges may ultimately be viewed as matters in which reasonable experts
may differ.’” 382 That is the case here.
The judgments Singer made “may diminish the probative value” of his analysis, “[b]ut
such defects do not generally preclude admissibility.” 383 It is the province of the jury to weigh
the persuasiveness of Singer’s “underlying data, assumptions, and conclusions.” 384 The court
concludes his opinions meet the admissibility threshold of Rule 702 and Daubert. PPC’s Motion
to Exclude is denied.
V.

CONCLUSION
For the reasons explained above, Plaintiffs’ Motion for Class Certification 385 is

GRANTED, and PPC’s Motion to Exclude 386 Singer’s expert opinions is DENIED.
The court certifies a class consisting of all individuals and entities in the United States
and its territories that were compensated for Broiler Grow-Out Services by a Defendant or CoConspirator (excluding Claxton and Allen Harim), or by a division, subsidiary, predecessor, or

See In re Air Cargo Shipping Servs., 2014 WL 7882100, at *8 (“Creating statistical models . . . depends upon
judgment and art as well as the reasoned manipulation of numbers. Models are not the real world; rather, such
models are a reasoned and educated attempt to describe reality by accepted methods of statistical analysis using
available real world observations, data, and knowledge.”) (quoting Falise v. Am. Tobacco Co., 258 F. Supp.2d 63,
67 (E.D.N.Y. 2000)).
381

382
Id. (quoting In re Vitamin C Antitrust Litig., No. 06-MD-1738, 2012 WL 6675117, at *5 (E.D.N.Y. Dec. 21,
2012)).
383

In re Urethane, 768 F.3d at 1261.

384

Id. at 1263.

385

Dkt. 454.

386

Dkt. 456.

70

affiliate of a Defendant or Co-Conspirator (excluding Claxton and Allen Harim), at any time
during the period of January 27, 2013 through and including December 31, 2019. Hausfeld LLP
and Berger Montague PC are appointed Class Counsel and named Plaintiffs are appointed as
Class representatives.
IT IS SO ORDERED this 8th day of May 2024.

BY THE COURT:
_______________________
HON. ROBERT J. SHELBY
United States District Judge

71