IN RE: MUSHROOM DIRECT PURCHASER ANTITRUST LITIGATION
MEMORANDUM AND OPINION. SIGNED BY HONORABLE THOMAS N. ONEILL, JR ON 2/22/17. 2/22/17 ENTERED AND COPIES MAILED & E-MAILED.(fdc)
THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
IN RE MUSHROOM DIRECT
THIS DOCUMENT RELATES TO:
Master File NO. 06-0620
February 22, 2017
On November 22, 2016, in conjunction with my decision to certify a class in this longrunning antitrust litigation, I granted certain defendants’ 1 motion seeking summary judgment
with respect to the claims of plaintiff Diversified Foods and Seasonings, Inc. See Dkt. No. 779
at 30-37 (discussion of Diversified motion in class certification opinion), Dkt. No. 780 (class
certification order), Dkt. No. 791 (redacted class certification opinion and order). A group of
plaintiffs who identify themselves as the “Direct Purchaser Class Plaintiffs” 2 now seek
reconsideration of that decision pursuant to Local Rule 7.1(g). Before me are: plaintiffs’ motion
for reconsideration of the Court’s dismissal of class representative Diversified Foods &
Seasonings, Inc. (Dkt. No. 787), certain defendants’ opposition to the motion for reconsideration
“Certain defendants” are: the Eastern Mushroom Marketing Cooperative
(EMMC), Robert A. Feranto, Jr., t/a Bella Mushroom Farms; Brownstone Mushroom Farms,
Inc.; Brownstone Farms, Inc.; Brownstone Mushroom Farm; To-Jo Fresh Mushrooms, Inc.;
Cardile Mushrooms, Inc.; Cardile Bros. Mushrooms Packaging; Country Fresh Mushroom Co.;
Forest Mushroom Inc.; Gino Gaspari & Sons, Inc.; Gaspari Mushroom Co., Inc.; Gaspari Bros.,
Inc.; Kaolin Mushroom Farms, Inc.; South Mill Mushroom Farms, Inc.; South Mill Mushroom
Sales, Inc.; LRP Mushrooms, Inc. LRP-M Mushrooms LLC; Modern Mushroom Farms, Inc.;
Sher-rockee Mushroom Farm, LLC; C&C Carriage Mushroom Co.; Oakshire Mushroom Farm,
Inc.; Phillips Mushroom Farms, Inc.; Louis M. Marson Jr., Inc.; Monterey Mushrooms, Inc.;
United Mushroom Farms Cooperative, Inc.; John Pia; and Michael Pia. Dkt. No. 537.
Publix Supermarkets, Inc. and Giant Eagle, Inc. are opt-out plaintiffs. References
to “plaintiffs” in this opinion do not encompass the opt-out plaintiffs.
(Dkt. No. 799) and plaintiffs’ reply (Dkt. No. 803). 3 As is further set forth below, I find that
plaintiffs have not met their burden on reconsideration and I will deny their motion.
STANDARD OF REVIEW
Local Civil Rule 7.1(g) allows parties to file motions for reconsideration. E.D. Pa. Loc.
R. 7.1(g). On a motion for reconsideration,
a judgment may be altered or amended if the party seeking
reconsideration shows at least one of the following grounds: (1) an
intervening change in the controlling law; (2) the availability of
new evidence that was not available when the court granted the
motion for summary judgment; or (3) the need to correct a clear
error of law or fact or to prevent manifest injustice.
Max’s Seafood Cafe v. Quinteros, 176 F.3d 669, 677 (3d Cir. 1999), citing Harsco Corp. v.
Zlotnicki, 779 F.2d 906, 909 (3d Cir. 1985). “[T]he burden is on the movant . . . .” Egervary v.
Rooney, 80 F. Supp. 2d 491, 506 (E.D. Pa. 2000) (citation omitted). A finding of clear error
requires a “‘definite and firm conviction that a mistake has been committed.’” Johnson v.
SmithKline Beecham Corp., 724 F.3d 337, 345 (3d Cir. 2013), quoting Inwood Labs., Inc. v.
Ives Labs., Inc., 456 U.S. 844, 855 (1982). “[A] motion for reconsideration addresses only
factual and legal matters that the Court may have overlooked. [It is improper] to ‘ask the Court
to rethink what [it] had already thought through – rightly or wrongly.’” Glendon Energy Co. v.
Borough of Glendon, 836 F. Supp. 1109, 1122 (E.D. Pa. 1993) (citation omitted). “Because of
the interest in finality . . . courts should grant motions for reconsideration sparingly.” Rottmund
v. Cont’l Assurance Co., 813 F. Supp. 1104, 1107 (E.D. Pa. 1992).
On February 7, 2017, plaintiffs filed a motion for entry of final judgment under
Rule 54(b) of the Federal Rules of Civil Procedure and/or for certification of an appeal pursuant
to 28 U.S.C. § 1292(b) (Dkt. No. 805) that they explain “is presented in the alternative to
Plaintiffs’ pending motion for reconsideration of the Court’s decision to dismiss Diversified as a
class representative . . . .” Dkt. No. 805-1 at ECF p.6. I will consider the certification motion in
a separate opinion after defendants file their response.
When I granted summary judgment in favor of certain defendants with respect to
Diversified’s claims, I found that plaintiffs had “not established that a genuine dispute remains
with respect to the question of whether Diversified has antitrust standing under Illinois Brick.” 5
Dkt. No. 779 at 36. Pursuant to Illinois Brick Co. v. Illinois, 431 U.S. 720 (1977), there is a
“general rule that only direct purchasers from antitrust violators may recover damages in
antitrust suits.” Howard Hess Dental Labs., Inc. v. Dentsply Intern., Inc. (Hess I), 424 F.3d 363,
369 (3d Cir. 2005); see McCarthy v. Recordex Serv., Inc., 80 F.3d 842, 847-48 (3d Cir. 1996)
(“[T]he [Illinois Brick] Court . . . enunciat[ed] a bright-line rule that only the purchaser
immediately downstream from the alleged monopolist may bring an antitrust action . . . .”).
“Illinois Brick’s direct purchaser rule seeks to counteract ‘the difficulty of analyzing pricing
decisions, the risk of multiple liability for defendants, and the weakening of private antitrust
enforcement that might result from splitting damages for overcharges among direct and indirect
purchasers.’” Wallach v. Eaton Corp., 837 F.3d 356, 365 (3d Cir. 2016), quoting Gulfstream III
Assocs. v. Gulfstream Aerospace Corp., 995 F.2d 425, 439 (3d Cir. 1993) (Greenberg, J.,
concurring and speaking for the majority). In the Third Circuit, indirect or secondary purchasers
may still sue under the antitrust laws if they can establish one of three possible exceptions to the
The factual background of this litigation is set forth in detail in the Court’s prior
decisions and is discussed in this memorandum only to the extent necessary to explain the
Court’s decision on reconsideration.
As I noted in my prior decision, Dkt. No. 779 at 23 n.16, the Court of Appeals has
explained that Article III standing and antitrust standing are “distinct” concepts. Hartig Drug
Co. Inc. v. Senju Pharm. Co., 836 F.3d 261, 269-70 (3d Cir. 2016) (explaining that “the direct
purchaser rule represents a policy decision intended to aid the purposes of the antitrust statutes
and does not speak to whether there is an Article III case or controversy”); see also Warren Gen
Hosp. v. Amgen, Inc., 643 F.3d 77 (3d Cir. 2011) (noting “the different components of antitrust
standing: the statutory requirement contained in Section 4 that the plaintiff be the direct
purchaser as set forth in Illinois Brick and the requirement that the plaintiff have suffered a
Illinois Brick direct purchaser rule: (1) a “cost-plus” exception, which is not relevant here, (2) a
“co-conspirator” exception and (3) an “owned or controlled” exception. See In re: Domestic
Drywall Antitrust Litig., No. 13-2437, 2016 WL 3769680, at *4 (E.D. Pa. July 13, 2016), citing
Merican, Inc. v. Caterpillar Tractor Co., 713 F.2d 958, 968 n.22 (3d Cir. 1983) and Howard Hess
Dental Labs, Inc. v. Dentsply Int’l, Inc. (Hess II), 602 F.3d 237, 258-59 (3d Cir. 2010).
On summary judgment, certain defendants argued that Diversified was “an indirect
purchaser, rather than a direct purchaser of fresh agaricus mushrooms, having purchased all of its
fresh agaricus mushrooms from one or more distributors of Defendant Southmill Mushroom
Sales, Inc. . . . .” Dkt. No. 441 at 10; see also id. at 24-25 (“Diversified purchased all of its fresh
agaricus mushrooms from . . . South Mill of New Orleans.”). Plaintiffs responded that
“[b]ecause Diversified was the first purchaser to purchase at a price fixed by the EMMC, its
claims do not involve any proof of passed-on damages of the kind barred by Illinois Brick.” Dkt.
No. 457 at 12. I held that I was “not persuaded that Illinois Brick does not apply to bar
Diversified’s claims simply because the EMMC fixed mushroom distribution prices instead of
the prices for mushrooms sold by growers to distributors,” Dkt. No. 779 at 31, and thus
continued to consider whether any of the relevant exceptions to the Illinois Brick rule would
permit Diversified’s claims to proceed. I found that Diversified could not rely on the coconspirator exception because South Mill of New Orleans is not named as a defendant in this
litigation. Dkt. No. 779 at 32. I also found that “[o]n the record before me, a reasonable jury
could not find that the owns or controls exception to Illinois Brick should apply to permit
Diversified’s claims to proceed,” id. at 36, citing my previous determination that “Kaolin/South
Mill and its distribution entities are separate decisionmakers pursuing separate economic
interests as is evidenced by [a] suit between them,” In re Mushroom, 54 F. Supp. 3d 382, 389
(E.D. Pa. 2014); see Dkt. No. 441 at 25.
On reconsideration, plaintiffs argue that “[b]ecause of the cursory briefing that the
Illinois Brick issue received, [they] believe that the Court may have overlooked key Third
Circuit precedent . . . .” Dkt. No. 797-1 at ECF p. 7. Specifically, plaintiffs argue that in
dismissing Diversified’s claim, the Court did not consider In re Lower Lake Erie Iron Ore
Antitrust Litigation, 998 F.2d 1144 (3d Cir. 1993) or In re Modafinil Antitrust Litigation, 837
F.3d 238 (3d Cir. 2016). Dkt. No. 787-1 at ECF p. 4. Plaintiffs argue that Lower Lake Erie and
Modafinil “make clear that when defendants’ conduct limits the supply of goods or services to
the market . . . the market participants that are most directly impacted by the conduct have a right
to sue for damages even if they can be characterized as indirect purchasers.” Dkt. No. 787-1 at
ECF p. 7. They also argue that Lower Lake Erie and Modafinil support “their argument that
Illinois Brick does not operate to bar non-pass on damage theories.” Dkt. No. 787-1 at ECF p. 7.
Certain defendants respond that they “and other defendants have raised Illinois Brick on
numerous occasions,” Dkt. No. 799 at ECF p. 8, and “that Plaintiffs have had multiple
opportunities over the years to raise their arguments,” leaving “the Court . . . well within its
discretion to refuse Plaintiffs one more bite at the apple.” Id. at 9 (internal quotation omitted).
They note that plaintiffs never previously cited either Lower Lake Erie, or Modafinil 6 to the
Court and contend that neither decision “provides any reason to question the Court’s decision” to
grant summary judgment in their favor with respect to Diversified’s claims. Dkt. No. 799 at
ECF p. 5-6. They also argue that the Court’s prior “analysis was in keeping with Third Circuit
Plaintiffs argue in their reply that Modafinil had not been decided when the
Illinois Brick issues were briefed in this case. Dkt. No. 803 at ECF p. 5. However, as certain
defendants note, although they could have, “plaintiffs did not file a notice of supplemental
authority with the court regarding Modafinil when it was decided in September of 2016.” Dkt.
No. 799 at ECF p. 3.
precedent declaring that Illinois Brick must be applied by looking to the ‘economic substance’ or
the ‘mechanics of the transactions’ between the upstream and downstream entities.” Id. at ECF
p. 6, citing Warren Gen. Hosp. v. Amgen, Inc., 643 F.3d 77, 88 (3d Cir. 2011).
Even if I were to decide to “reconsider” an argument which was not squarely before me
when I rendered my prior decision, neither Lower Lake Erie nor Modafinil persuade me that
Diversified should be permitted to proceed with its claims in this litigation. Plaintiffs argue that
Lower Lake Erie and Modafinil stand for the proposition that “the key question under the direct
purchaser rule is who ‘bore the brunt of the increased costs.’” Dkt. No. 787-1 at ECF p. 9. They
argue that the Court of Appeals has held that Illinois Brick does not “announc[e] a strict
prohibition against recovery by indirect purchasers.” Dkt. No. 778-1 at ECF p. 8, quoting Lower
Lake Erie, 998 F.2d at 1167 n.21. Plaintiffs contend that Lower Lake Erie and Modafinil show
that “Illinois Brick is not about the nature of the distributors’ ‘affiliations’ [with the growers],”
but rather is “about the nature of the plaintiffs’ damage claims and the party most directly injured
by defendants’ conduct.” Dkt. No. 787-1 at ECF p. 8. Plaintiffs argue that Diversified has
antitrust standing because it “paid the fixed price set by the EMMC” and because “[n]o other
entity in the distribution chain was more directly injured by the EMMC’s conduct.” Dkt. No.
787-1 at ECF p. 10. In response, certain defendants argue that the “‘most directly injured’
test . . . contradicts a wealth of Third Circuit case law consistently applying Illinois Brick as a
bright line test that looks to the nature of the upstream transactions, not the downstream effect on
the plaintiff.” Dkt. No. 799 at ECF p. 12. They argue that “Lower Lake Erie cannot be
interpreted as an end-run around Illinois Brick’s bright line rule.” Id. at ECF p. 10. Certain
defendants also argue that Modafinil does not apply here because “it was not a price-fixing or a
supply reduction case, but a ‘market exclusion’ case.” Id. at ECF p. 14. For the following
reasons I agree with certain defendants that neither of the cases cited by plaintiffs warrant
reconsideration of my prior decision.
As the Court of Appeals explained in Merican, Inc. v. Caterpillar Tractor Co., “[t]he issue
[under Illinois Brick] is not whether Appellees have sustained injuries too remote to give them
standing or whether they are they are the direct targets of an alleged conspiracy, but rather
whether they are in the class of persons considered to be injured in their business or property
under section 4 [of the Clayton Act] by an antitrust violation.” 713 F.2d 958, 966 (3d Cir. 1983).
Under Illinois Brick, “a district court must focus on the possibility of duplicative recovery and
the potential for overly-complex damage claims if a damage suit is allowed.” Id. In Kansas v.
UtiliCorp United, Inc., the Supreme Court explained that
[t]he rationales underlying Hanover Shoe and Illinois Brick will
not apply with equal force in all cases. We nonetheless believe
that ample justification exists for our stated decision not to ‘carve
out exceptions to the [direct purchaser] rule for particular types of
markets.’ . . . The possibility of allowing an exception, even in
rather meritorious circumstances, would undermine the rule.
497 U.S. 199, 216 (1990), quoting Illinois Brick, 431 U.S. at 744.
In reaching its conclusion that the Lower Lake Erie plaintiffs had standing to pursue their
antitrust claims, the Court of Appeals stated that it “remain[ed] loyal to upholding the concerns
voiced by the Supreme Court in Illinois Brick . . . .” 998 F.2d at at 1168. The Court of Appeals
also explained that to determine whether the plaintiff steel companies had antitrust standing, it
was required “to ascertain the nature of the relationship between the parties.” Id. at 1168
In the case, the steel company plaintiffs claimed that they had to pay inflated lake
transport charges and dock handling fees because the railroad defendants had conspired to
prevent non-railroad owned docks on Lake Erie from unloading ships carrying iron ore. In the
end, the Court of Appeals did not “resolve[ ] the standing issue . . . with reference to the ‘indirect
purchaser rule’ of Illinois Brick,” as the District Court had done. 998 F.2d at 1165. Instead, the
Court of Appeals “conclude[d] that the standing requirement [wa]s satisfied under a different
rationale.” Id. The Court of Appeals then looked to whether the plaintiffs could satisfy all of the
factors set forth in Associated General Contractors v. California State Council of Carpenters, 459
U.S. 519 (1983), finding that the facts of the Lower Lake Erie case required “a more complete
analysis” and that it could not decide the case “solely on the operation of the Illinois Brick
concern, i.e., that the potential for duplicative recovery and complex apportionment of damages
meant that the plaintiffs were not persons injured in their business or property by reason of
violation of the antitrust laws . . . .” Lower Lake Erie, 998 F.2d at 1166 (citation and internal
quotation omitted). As my colleague explained in In re Processed Egg, 312 F.R.D. at 147, the
Court of Appeals in Lower Lake Erie ultimately allowed recovery for an overcharge paid to the
vessel companies “only because the intermediate parties were conceived by the . . . Court of
Appeals in the aggregate as one industry serving a single customer.” 7
“The court reasoned that because every component of this industry – the iron, the
ships, the docks, and the railroads – existed for the sake of creating steel, the lost profits of the
steel industry as a result of the conspiracy were, essentially, damages directly attributable to the
defendants.” In re Processed Egg, 312 F.R.D. at 146-47. With respect to damages for dock
handling services, the Court of Appeals held there was no “specter of indirectness” because “the
dominant relationship in the context of the steel companies purchasing dock services from [the
railroad was] one of customer-provider.” Lower Lake Erie, 998 F.2d at 1170. The Court of
Appeals also explained that while “the steel companies, in respect to lake transport damages
[we]re, in some sense, ‘indirect’ purchasers,” there were “no missing links in the causation
chain” because of the conspiracy’s “unique circumstances.” Id. The Court of Appeals reasoned
[t]he steel companies were the sole customers of the industry
involved in the transhipment of ore; indeed, the industry existed
for them. True, the steel companies made payments for ore
movement services to various parties, defendants and nondefendants alike, but it was unquestionably the steel companies
For Lower Lake Erie to apply on the facts now before me, plaintiffs would have me
conclude that Kaolin, the EMMC-member grower, and South Mill, who distributed Kaolin’s
mushrooms to Diversified, acted “in the aggregate” as a single entity to charge Diversified the
EMMC-fixed price for agaricus mushrooms. However, the fact remains that plaintiffs have not
given me a reason to reconsider my previous finding that “Kaolin/South Mill and its distribution
entities are separate decisionmakers pursuing separate economic interests as is evidenced by [a]
suit between them.” In re Mushroom, 54 F. Supp. 3d 382, 389 (E.D. Pa. 2014).
Further, even after its decision in Associated General Contractors the Supreme Court has
declined to depart from application of the Ilinois Brick direct purchaser rule. See Kansas v.
UtiliCorp United, Inc., 497 U.S. 199, 217 (1990) (holding that the direct purchaser rule should
apply “even assuming that any economic assumptions underlying the Illinois Brick rule might be
disproved in a specific case”). Thus, since its decision in Lower Lake Erie, the Court of Appeals
has not agreed with other plaintiffs who have endeavored to replace the bright-line direct
purchaser rule set forth in Illinois Brick “with a test examining whether the plaintiff was the
target of the challenged conduct . . . .” Dkt. No. 799 at ECF p. 11. In McCarthy v. Recordex
Service, Inc., 80 F.3d 842, 851 (3d Cir. 1996), the Court of Appeals rejected the plaintiffs’
argument “that the absolute bar of the ‘direct purchaser’ rule has been supplanted by [the]
balancing approach” set forth in Associated General Contractors. In reaching its conclusion in
McCarthy, the Court of Appeals explained that Lower Lake Erie was “fully distinguishable”
because “the plaintiffs’ claims did not involve ‘the particular kind of double recovery Illinois
who bore the brunt of the increased costs attributed to the
railroad’s agreement to thwart development of the less expensive
Id. at 1169.
Brick sought to prevent.’” McCarthy, 80 F.3d at 851.
More recently, in Warren General Hospital v. Amgen Inc., the Court of Appeals rejected
the plaintiff’s “argument that it ha[d] antitrust standing because it [wa]s the first injured party in
the chain of distribution . . . .” 643 F.3d 77, 91 (3d Cir. 2011). Instead, in finding the plaintiff
was an indirect purchaser, the Court of Appeals concluded there was “no way of getting around
the conclusion that Warren General is the second purchaser in the chain of distribution” where
“purchases go through at least one other stage in the chain of distribution before reaching Warren
General” and there were no allegations that the wholesaler between the plaintiff and the
defendant was “controlled or owned by Amgen and thus part of the conspiracy.” 8 Id. at 88. The
Court of Appeals reasoned that “[b]ecause of the complicated interplay between market forces,
the possibility that the wholesaler was harmed by defendant’s actions exists even if the majority
of the injury is borne by the indirect purchaser.” Id. at 94. The Court of Appeals explained that
in Illinois Brick, “the [Supreme] Court manifested its unwillingness to recognize any exceptions
to the direct purchaser rule, . . . warning that ‘the process of classifying various market situations
according to the amount of pass-on likely to be involved and its susceptibility of proof in a
judicial forum would entail the very problems that the Hanover Shoe rule was meant to
avoid . . . .’” Warren Gen., 643 F.3d at 86, quoting Illinois Brick,431 U.S. at 743-45. Thus, it
explained that “Hanover Shoe and its progeny[, i.e., Illinois Brick,] did not resolve what party
was a direct purchaser by calculating exactly where the harm lay.” Id. at 92.
Plaintiffs assert that Warren General was different from this case because in Warren
General drug prices were set by the wholesaler from whom the hospital purchased the drug (i.e.
the equivalent of the mushroom distributors), not the drug manufacturer (i.e., the equivalent of
The Warren General decision includes citations to Lower Lake Erie and
Associated General Contractors, but does not specifically discuss either case. 643 F.3d at 83, 92.
the mushroom growers). Dkt. No. 787-1 at ECF p. 10 n.2. Plaintiffs argue that “[h]ere, South
Mill of New Orleans did not independently set the prices that Diversified paid.,” but rather,
“[t]he prices were collectively set by the EMMC members . . . .” Dkt. No. 787-1 at ECF p. 10
n.2. But here, like in Warren General, there is no evidence that Kaolin (the EMMC-member
grower) owned or controlled South Mill (the distributor). There is “no way of getting around the
conclusion that [Diversified] is the second purchaser in the chain of distribution . . . .” 9 Warren
General, 643 F.3d at 88; see also In re Hypodermic Prod. Antitrust Litig., 484 F. App’x 669, 675
(3d Cir. 2012) (citing with approval the Court of Appeals’ focus in Warren General on “the
mechanics of the transactions” and finding that “because the hypodermic products pass through
at least one other stage in the chain of distribution before reaching Healthcare Providers, the
Distributors, not Healthcare Providers, are the direct purchasers in contract sales”); Howard Hess
Dental Labs. Inc. v. Dentsply Int’l, Inc. (Hess I), 424 F.3d 363, 372-73 (3d Cir. 2005) (finding
that the plaintiffs did not become direct purchasers from a manufacturer who drop-shipped
products to them because “the dealers still make the sale to [the] Plaintiffs and [the
manufacturer] makes the sale to the dealers;” instead what mattered for purposes of the Illinois
Brick analysis was “the economic substance of the transaction”); Animal Sci. Prod., Inc. v.
China Minmetals Corp., 34 F. Supp. 3d 465, 502 (D.N.J. 2014) (“[T]he requirement that a
Similarly, in Kendall v. Visa U.S.A., Inc., the Court of Appeals for the Ninth
Circuit held that the plaintiffs – merchants – could not maintain an antitrust suit against credit
card companies as direct purchasers because they ran “squarely into the Illinois Brick wall.” 518
F.3d 1042, 1049 (9th Cir. 2008). The plaintiffs alleged that the defendants – both credit card
companies and banks – conspired to set fees on credit card purchases. Id. at 1044-45. The Ninth
Circuit held that because the fees at issue were set by the credit card companies and not by the
banks, the banks were “middlemen.” Id. at 1048-49. Because the plaintiffs failed to allege any
facts showing that the banks were either controlled by or in a conspiracy with the credit card
companies, the plaintiffs could not get around the direct purchaser rule to bring claims against
the credit card companies. Id. at 1050.
plaintiff be a ‘direct purchaser’ is a bright-line rule of antitrust standing. And to determine
whether plaintiff is a direct purchaser, the court must look to the ‘economic substance’ of the
transaction.”); In re Vitamin C Antitrust Litig., 279 F.R.D. 90, 101 (E.D.N.Y. 2012) (explaining
that Illinois Brick “established a mostly bright-line rule barring indirect purchasers from seeking
damages for antitrust violations in federal court”).
Plaintiffs also contend that reconsideration is warranted because “none of the policies of
Illinois Brick support barring Diversified’s claims,” arguing that “[t]here is no chance of
duplicative recovery because Diversified is the first purchaser affected by the price fixed by the
EMMC . . . .” Dkt. No. 803 at 6 (emphasis omitted). But, plaintiffs have not given me any
reason to reconsider my prior finding that “[t]he previous lawsuit between Kaolin and the South
Mill Distribution centers with respect to mushroom pricing, Dkt. No. 273, Ex. 12, shows that the
concerns voiced in Illinois Brick – multiple lawsuits, double recovery and tracing – would
clearly be implicated if Diversified were allowed to proceed with its claims.” Dkt. No. 779 at
36. In Warren General, where, as is alleged here, a distributor did not itself pay the
anticompetitive price, the Court of Appeals explained that the direct purchaser rule would still
protect against the risk of multiple liability because “[t]he price increases created by the
defendant’s anticompetitive practices might affect the demand for the products the wholesaler
sells, even if the price increase is borne by the indirect purchaser,” giving both direct and
indirect purchasers grounds for claiming damages. 643 F.3d at 95 (emphasis in original). 10
Plaintiffs also argue that there is no “need to prove complex theories of
apportionment” because “South Mill’s purchase price was not affected by the conspiracy and its
selling price was set by the EMMC, not independent market forces.” Dkt. No. 803 at ECF p. 6.
But this argument does not persuade me that Diversified’s claims should be permitted to
proceed. In Kansas v. UtiliCorp United, Inc., the Supreme Court declined to adopt the similar
reasoning of dissenting Justice White that, “where there is a ‘perfect and provable’ passthrough,
there is no danger that both the [direct purchaser] and the indirect purchasers will recover
Plaintiffs argue as well that “the conclusion that Diversified cannot sue for damages
creates a gap in antitrust enforcement where no one has the right to sue for overcharge damages
on the Kaolin-grown mushrooms purchased by Diversified.” 11 Dkt. No. 803 at ECF p. 6. They
argue that because “South Mill’s selling price was fixed[,] it did not experience any overcharges
for which it could sue.” Id. (emphasis in original). But Diversified could have sued for damages
on the Kaolin-grown mushrooms that it purchased – it could have brought a claim against South
Mill of New Orleans, the distributor. Plaintiffs have argued elsewhere that “[t]he South Mill
Mushroom Distributor was part of the conspiracy, it was controlled by Kaolin. It participated in
that conspiracy.” Dkt. No. 768 at 25:18-20. Plaintiffs’ failure to name South Mill of New
Orleans as a defendant is what creates any “gap in antitrust enforcement,” not application of the
Illinois Brick direct purchaser rule. Cf. Link v. Mercedes-Benz of N. Am., Inc., 788 F.2d 918,
931 (3d Cir. 1986) (declining to recognize co-conspirator exception to Illinois Brick “where, as
here, the alleged co-conspirators are not also joined as co-defendants”); In re Ditropan XL
Antitrust Litig., No. 06-01761, 2007 WL 2978329, at *4 (N.D. Cal. Oct. 11, 2007) (“Alleged coconspirator-intermediaries, whose participation must be demonstrated if a vertical conspiracy is
to be proved and Illinois Brick circumvented, must be named as defendants.”).
Finally, and most recently, in Modafinil, the Court of Appeals reiterated the rule that
damages for the same anticompetitive conduct . . . .” 497 U.S. 199, 224 (1990) (White, J.,
dissenting). Instead, the Supreme Court explained that “the means by which the passthrough
occurred remain[ed] unsettled” in the case and found that “[t]he difficulties posed by issues of
this sort led us to adopt the direct purchaser rule” and therefore “declined to create an exception
that would require their litigation.” Id. at 211.
In Dimartino v. BMW of North America, LLC, the court rejected the plaintiff’s
similar argument that Illinois Brick should not apply where the “consumers are the only one
party who would pursue a claim . . . .” No. 15-8447, 2016 WL 4260788, at *4-5 (D.N.J. Aug.
11, 2016). The court declined to find antitrust standing, noting inter alia that the plaintiff’s
allegation “that the second-parties were merely pass through entities for the final sale to the
consumer . . . in no uncertain terms, makes the second-parties the direct purchasers.” Id.
“[w]hen . . . the anticompetitive conduct is price-fixing, the only customers who will have
antitrust standing are the direct customers of the conspiracy members.” 837 F.3d at 265.
Modafinil, therefore, does not require that I reconsider my decision with respect to Diversified’s
price-fixing claims. However, on reconsideration, plaintiffs argue that “[l]ike the challenged
conduct in . . . Modafinil, the EMMC’s supply control program eliminated lower cost product
from the market.” Dkt. No. 787-1 at ECF p. 12. They contend that Modafinil requires that I
reconsider whether Diversified’s claims based on the EMMC’s supply control agreement are
barred by Illinois Brick. Id. at 10-11. I do not find that Modafinil requires me to permit
Diversified’s supply control claims to proceed.
Defendants argue that “Modafinil is not informative here because . . . [i]t was not a pricefixing or a supply reduction case, but a ‘market exclusion’ case, which discussed antitrust
standing for purchasers from non-conspirators under common law principles of joint and several
liability.” Dkt. No. 799 at ECF p. 14. Indeed, in Modafinil, the Court of Appeals explained that
the case was “not about price-fixing. It is, instead, a case about market exclusion, as it concerns
conduct that prevents a competitive market from forming at all.” 837 F.3d at 265. The
Modafinil plaintiffs argued that “each of the four generic [drug] manufacturer[ defendants]
allegedly entered into separate anticompetitive arrangements with Cephalon,” the brand name
drug manufacturer defendant. 837 F.3d at 266. The Court of Appeals reasoned that “[i]f any one
of them had refused to enter into this arrangement, there would have been no antitrust injury for
anyone” but “because all four entered into . . . reverse-payment settlement agreements and
prevented a competitive market from forming, each contributed to the market-wide harm, and
each [could] be held jointly and severally liable for such harm.” Id. It concluded that “[t]he
class member who would have purchased from Teva is harmed by the Ranbaxy and Mylan
agreements to the same extent that a Ranbaxy or Mylan customer would be” and therefore held
that “any class member would have antitrust standing to sue any or all of the four generic
companies individually.” Id.
Plaintiffs argue that Diversified’s supply control claims should be permitted to proceed
because, “[l]ike the market exclusion in Modafinil, the EMMC’s supply control program was
designed to interfere in the functioning of a competitive market.” Dkt. No. 803 at ECF p. 10.
But, unlike in Modafinil, the agreement that is alleged to have created the harm in this case – the
claimed agreement among the members of the EMMC to purchase or lease properties in order to
remove them from mushroom production – is one step removed from plaintiffs. As defendants
argue, “the plaintiffs in Modafinil were direct purchasers and therefore [the] case did not make
any pronouncements regarding the applicability of Illinois Brick to an alleged supply restraint.”
Dkt. No. 799 at ECF p. 16. The Modafinil plaintiffs directly purchased generic drugs from at
least one of the four generic defendants who were each alleged to have entered into an
anticompetitive agreement. Here, in contrast, the plaintiffs made their purchases from
mushroom distributors – and not from the mushroom growers who are alleged to have entered
into a supply control agreement. Thus, as defendants argue, “[t]his case is no different from
Processed Egg,” a case “alleging a supply restraint where [the] court . . . applied the direct
purchaser rule.” Dkt. No. 799 at ECF p. 17; see In re Processed Egg Prod. Antitrust Litig., 312
F.R.D. 124, 147 (E.D. Pa. 2015) (applying Illinois Brick to the plaintiffs’ claims regarding an
alleged conspiracy by egg producers to control and limit the supply of eggs); see also In re
Midwest Milk Monopolization Litig., 730 F.2d 528, 529 (8th Cir. 1984) (applying Illinois Brick
to the plaintiffs’ claims that the defendants conspired to control the supply of raw milk).
Ultimately I find no clear error of law or fact in my decision to grant certain defendants’
motion seeking summary judgment with respect to the claims of plaintiff Diversified Foods and
Seasonings, Inc. Thus I will deny plaintiffs’ motion.
An appropriate Order follows.
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