Case 5:21-cv-05684 Document 1 Filed 07/23/21 Page 1 of 79
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`Robert W. Dickerson, Jr. (SBN 089367)
`E-mail: rdickerson@bwslaw.com
`BURKE, WILLIAMS & SORENSEN, LLP
`444 South Flower Street, Suite 2400
`Los Angeles, CA 90071-2953
`Tel: 213.236.0600
`
`Fax: 213.236.2700
`Attorneys for Plaintiff
`KRAFT HEINZ FOODS COMPANY
`
`
`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF CALIFORNIA
`
`Case No.
`COMPLAINT
`DEMAND FOR JURY TRIAL
`
`
`KRAFT HEINZ FOODS
`COMPANY,
`
`Plaintiff,
`
`v.
`AGRI STATS, INC., CLEMENS
`FOOD GROUP, LLC, THE
`CLEMENS FAMILY
`CORPORATION, JBS USA FOOD
`COMPANY, SEABOARD FOODS
`LLC, SMITHFIELD FOODS, INC.,
`TRIUMPH FOODS, LLC, TYSON
`FOODS, INC., TYSON PREPARED
`FOODS, INC., AND TYSON
`FRESH MEATS, INC.,
`Defendants.
`
`///
`///
`///
`///
`///
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`BURKE, WILLIAMS &
`SORENSEN, LLP
`ATTO RN EY S AT LAW
`LOS A NG EL ES
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`LA #4837-2183-4227 v1
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`
`
`
`COMPLAINT AND JURY DEMAND
`
`

`

`Case 5:21-cv-05684 Document 1 Filed 07/23/21 Page 2 of 79
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`TABLE OF CONTENTS
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`Page
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`NATURE OF ACTION .................................................................................. 4
`I.
`JURISDICTION AND VENUE ...................................................................... 7
`II.
`III. PARTIES ......................................................................................................... 8
`A.
`Plaintiff .................................................................................................. 8
`B. Defendants............................................................................................. 8
`1.
`Agri Stats .................................................................................... 8
`2.
`Clemens ...................................................................................... 9
`3.
`JBS .............................................................................................. 9
`4.
`Seaboard...................................................................................... 9
`5.
`Smithfield ................................................................................. 10
`6.
`Triumph .................................................................................... 10
`7.
`Tyson ........................................................................................ 10
`IV. FACTUAL ALLEGATIONS ........................................................................ 11
`A. Agri Stats’ Central Role in Collusion in the Broiler Industry ............ 11
`B. Agri Stats Markets its Collusive Scheme to Defendants .................... 12
`C. Agri Stats Provided Defendants the Unique Ability to Monitor
`Pricing and Production and to Discipline Co-Conspirators that
`did not Comply with the Anticompetitive Agreement ....................... 15
`D. Defendants and Co-Conspirators Controlled the Supply and
`Production of Pork in the United States, Which Allowed the
`Scheme to Succeed .............................................................................. 22
`The Level of Concentration in the Pork Industry was Optimal
`for Defendants’ and Co-Conspirators’ Collusive Scheme .................. 27
`The Inelastic Demand for, and Homogeneity of, Pork Products
`Facilitated Collusion ........................................................................... 34
`G. Defendants and Co-Conspirators Took Advantage of Numerous
`Opportunities to Collude ..................................................................... 35
`H. Defendants and Co-Conspirators Implemented Capacity and
`Supply Restraints During the Relevant Period ................................... 42
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`E.
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`F.
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`BURKE, WILLIAMS &
`SORENSEN, LLP
`ATTO RN EY S AT LAW
`LOS A NG EL ES
`
`LA #4837-2183-4227 v1
`
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`Case 5:21-cv-05684 Document 1 Filed 07/23/21 Page 3 of 79
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`1.
`
`TABLE OF CONTENTS
`(continued)
`Page
`Summary of Defendants’ and Co-Conspirators’
`Conspiratorial Supply Restraints .............................................. 42
`a.
`Smithfield ....................................................................... 45
`b.
`Tyson .............................................................................. 46
`c.
`JBS/Cargill ..................................................................... 46
`d.
`Seaboard ......................................................................... 47
`e.
`Triumph .......................................................................... 47
`f.
`Clemens .......................................................................... 47
`Timeline of Conspiratorial Actios ............................................ 48
`2.
`Abnormal Pricing During the Relevant Period Demonstrates the
`Success of the Collusive Scheme ........................................................ 60
`1.
`The average hog wholesale price experienced an
`unprecedented increase beginning in 2009 ............................... 60
`The pork cut-out composite price experienced a dramatic
`increase beginning in 2009 and continuing throughout the
`relevant period .......................................................................... 62
`Pork processor’s margin increased beginning in around
`2009 showing a meaningful increase from earlier time
`periods ....................................................................................... 64
`Defendants’ revenues increased beginning in around
`2009, even taking into account defendant-specific costs ......... 65
`Overcharges Due to the Cartel Were Reflected in Higher Pork
`Prices Than What They Would Have Been Absent the
`Conspiratorial Activity ........................................................................ 67
`K. Defendants Actively Concealed the Conspiracy and Plaintiff Did
`Not and Could Not Have Discovered Defendants’
`Anticompetitive Conduct .................................................................... 71
`V. ANTITRUST INJURY.................................................................................. 75
`VI. VIOLATION OF SECTION 1 OF THE SHERMAN ACT ......................... 76
`VII. REQUEST FOR RELIEF .............................................................................. 77
`VIII. JURY TRIAL DEMANDED ........................................................................ 79
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`I.
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`J.
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`2.
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`3.
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`4.
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`BURKE, WILLIAMS &
`SORENSEN, LLP
`ATTO RN EY S AT LAW
`LOS A NG EL ES
`
`LA #4837-2183-4227 v1
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`- 3 -
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`I.
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`NATURE OF ACTION
`Defendants are the leading suppliers of pork in an industry with
`1.
`approximately $20 billion in annual commerce. The United States pork industry is
`highly concentrated, with a small number of large producers in the United States
`controlling supply. Defendants and their co-conspirators collectively control over 80
`percent of the wholesale pork market.
`Defendants Agri Stats, Inc. (“Agri Stats”), Clemens Food Group, LLC,
`2.
`The Clemens Family Corporation (“Clemens”), JBS USA Food Company (“JBS” or
`“JBS USA”), Seaboard Foods LLC (“Seaboard”), Smithfield Foods, Inc.
`(“Smithfield”), Triumph Foods, LLC (“Triumph”), Tyson Foods, Inc., Tyson
`Prepared Foods, Inc., and Tyson Fresh Meats, Inc. (together, “Tyson”), entered into
`a conspiracy from around 2008 or early 2009 through the present (referred to herein
`generally as “relevant period” or the “class period”) to fix, raise, maintain, and
`stabilize the price of pork.1 Defendants implemented their conspiracy by agreeing
`with their competitors to restrict output and limit production with the express
`intended purpose and expected result of increasing and stabilizing pork prices in the
`United States. In furtherance of the conspiracy, Defendants exchanged detailed,
`competitively sensitive, and closely guarded non-public information about prices,
`capacity, sales volume and demand through their co-conspirator, Defendant Agri
`Stats.
`
`Beginning at least as early as 2009 and continuing through the present,
`3.
`Agri Stats began providing highly sensitive “benchmarking” reports to Defendants.
`Benchmarking allows competitors to compare their profits or performance against
`that of other companies. However, the Agri Stats’ reports at issue in this case are
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`1 For the purposes of this complaint, pork includes all pork products, regardless of the form in
`which they are sold, and all products containing pig meat, whether purchased fresh or frozen,
`including but not limited to smoked ham, sausage, and bacon. From time to time in this complaint,
`“pork” and “swine” are used interchangeably, particularly when referring to the pork or swine
`industry.
`
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`BURKE, WILLIAMS &
`SORENSEN, LLP
`ATTO RN EY S AT LAW
`LOS A NG EL ES
`
`LA #4837-2183-4227 v1
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`unlike those of other lawful industry reports. Agri Stats gathers detailed financial and
`production data from each of the Defendants, standardizes this information, and
`produces customized reports and graphs for the co-conspirators. The type of
`information available in these reports is not the type of information that competitors
`would provide each other in a normal, competitive market. Instead, the provision of
`this detailed information acts as the modern equivalent of the proverbial smoke-filled
`room. Rather than meeting in a room with pen and paper, Agri Stats collected
`Defendants’ competitively sensitive supply and pricing data and intentionally shared
`that information through detailed reports it provided to them. On a weekly and
`monthly basis, Agri Stats provides Defendants with current and forward-looking
`sensitive information (such as profits, costs, prices and slaughter information), and
`regularly provides the keys to deciphering which data belongs to which producer.
`The effect of this information exchange was to allow Defendants to coordinate their
`anticompetitive conduct, monitor each other’s production and hence control supply
`and price.
`This data exchange through Agri Stats is a classic enforcement and
`4.
`implementation mechanism of a price-fixing scheme. First, the data is current and
`forward-looking – which courts consistently hold has “the greatest potential for
`generating anticompetitive effects.”2 Second, information contained in Agri Stats
`reports is specific to pork producers, including information on profits, prices, costs
`and production levels, instead of being aggregated as industry averages, thus
`providing transactional specificity and easy identification of specific producers.
`Third, none of the Agri Stats information was publicly available. Agri Stats is a
`subscription service which required the co-conspirators to pay millions of dollars
`over the relevant period – far in excess of any other pricing and production indices.
`
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`2 Todd v. Exxon Corp., 275 F.3d 191, 2011 (2d Cir. 2001) (Sotomayor, J.) (quoting United States
`v. Gypsum Co., 438 U.S. 422, 441 n.16 (1978)).
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`
`
`BURKE, WILLIAMS &
`SORENSEN, LLP
`ATTO RN EY S AT LAW
`LOS A NG EL ES
`
`LA #4837-2183-4227 v1
`
`
`- 5 -
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`COMPLAINT AND JURY DEMAND
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`Case 5:21-cv-05684 Document 1 Filed 07/23/21 Page 6 of 79
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`Agri Stats ensured that its detailed, sensitive business information was available only
`to the co-conspirators and not to any buyers in the market. Defendants utilize the
`information exchanges through Agri Stats in furtherance of their conspiracy to fix
`raise, stabilize, and maintain artificially inflated prices for pork sold in the United
`States.
`5. While Defendants went to great lengths to keep the existence of the
`conspiracy a secret, they admitted in public calls that they had discussed production
`cuts at least once and publicly signaled to each other that no supply increases would
`happen. Furthermore, each Defendant engaged in acts in furtherance of the
`conspiracy by participating in such supply cuts and by limiting increases in supply
`that otherwise would have occurred.
`In addition, there are numerous “plus factors” in the pork industry
`6.
`during the relevant period, including but not limited to multiple industry
`characteristics which facilitate collusion, such as vertically integrated operations,
`high barriers to entry preventing competitors from coming into the market, high pork
`industry consolidation and concentration, inelastic supply and demand, and
`homogeneity of pork products.3
`Defendants’ restriction of pork supply had the intended purpose and
`7.
`effect of increasing pork prices to Plaintiff. Around 2009, Defendants’ earnings
`began to increase, as they took an increasing amount of the profits available in the
`pork industry. As a result of Defendants’ unlawful conduct, Plaintiff paid artificially
`inflated prices for pork during the relevant period. Such prices exceeded the amount
`Plaintiff would have paid if the price for pork had been determined by a competitive
`market, without Defendants’ anticompetitive behavior. Thus, Plaintiff suffered injury
`and damages due to Defendants’ anticompetitive conduct.
`///
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`3 Pork is homogenous within cut type—e.g., pork bellies produced by two different Defendants are
`virtually indistinguishable.
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`BURKE, WILLIAMS &
`SORENSEN, LLP
`ATTO RN EY S AT LAW
`LOS A NG EL ES
`
`LA #4837-2183-4227 v1
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`II.
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`JURISDICTION AND VENUE
`Plaintiff brings this action under Sections 4 and 16 of the Clayton Act,
`8.
`15 U.S.C. §§ 15 and 26, for injunctive relief and to recover treble damages and the
`costs of this suit, including reasonable attorneys’ fees, against Defendants for the
`injuries sustained by Plaintiff by virtue of Defendants’ violations of Section 1 of the
`Sherman Act, 15 U.S.C. § 1.
`This Court has jurisdiction under 28 U.S.C. §§ 1331, 1337, and Sections
`9.
`4 and 16 of the Clayton Act, 15 U.S.C. §§ 15(a) and 26.
`10. Venue is appropriate in this District under Sections 4, 12, and 16 of the
`Clayton Act, 15 U.S.C. §§ 15, 22 and 26 and 28 U.S.C. § 1391(b), (c) and (d), because
`one or more Defendants resided or transacted business in this District, is licensed to
`do business or is doing business in this District, and because a substantial portion of
`the affected interstate commerce described herein was carried out in this District.
`11. This Court has personal jurisdiction over each Defendant because, inter
`alia, each Defendant: (a) transacted business throughout the United States, including
`in this District; (b) manufactured, sold, shipped, and/or delivered substantial
`quantities of pork throughout the United States, including this District; (c) had
`substantial contacts with the United States, including this District; and/or (d) engaged
`in an antitrust conspiracy that was directed at and had a direct, foreseeable, and
`intended effect of causing injury to the business or property of persons residing in,
`located in, or doing business throughout the United States, including this District.
`12. The activities of the Defendants and all co-conspirators, as described
`herein, were within the flow of, were intended to, and did have direct, substantial and
`reasonably foreseeable effects on the interstate commerce of the United States.
`13. No other forum would be more convenient for the parties and witnesses
`to litigate this case.
`///
`///
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`BURKE, WILLIAMS &
`SORENSEN, LLP
`ATTO RN EY S AT LAW
`LOS A NG EL ES
`
`LA #4837-2183-4227 v1
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`
`- 7 -
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`III. PARTIES
`Plaintiff
`A.
`14. Plaintiff Kraft Heinz Foods Company (“Kraft Heinz”) is a Pennsylvania
`limited liability company co-headquartered in Pittsburgh, Pennsylvania and Chicago,
`Illinois. Kraft Heinz is the third largest food and beverage company in the United
`States and the fifth largest in the world. In October 2012, Kraft Foods, Inc. spun off
`Kraft Foods Group, Inc., as a North American grocery business, before changing its
`name from Kraft Foods, Inc. to Mondelez International, Inc. On July 2, 2015,
`through a series of transactions, Kraft Foods Group, Inc. merged with and into Kraft
`Heinz Foods Company (formerly known as H.J. Heinz Company). The Kraft Heinz
`Company is the parent company of operating entity Kraft Heinz Foods Company. In
`addition to the well-known Kraft and Heinz brands, Kraft Heinz’s U.S. food brands
`include, among others, Oscar Mayer, Lunchables, Smart Made, and Smart Ones.
`Kraft Heinz brings this action on its own behalf and on behalf of its parents,
`subsidiaries, affiliates, and other owned or controlled entities and predecessors in
`interest (hereinafter collectively referred to as “Kraft Heinz” or “Plaintiff”). During
`the relevant period, Plaintiff purchased pork at artificially inflated prices directly
`from one or more Defendants, and their affiliates and co-conspirators, and suffered
`injury to its business or property as a direct or proximate result of Defendants’
`wrongful conduct. Plaintiff has therefore suffered antitrust injury as a direct result of
`the antitrust violations alleged in this Complaint.
`B. Defendants
`Agri Stats
`1.
`15. Agri Stats, Inc. is an Indiana corporation located in Fort Wayne, Indiana
`and is a former subsidiary of Eli Lilly & Co. Throughout the relevant period, Agri
`Stats acted as a co-conspirator and committed acts in furtherance of the conspiracy
`by facilitating the exchange of confidential, proprietary, and competitively sensitive
`data among Defendants and their co-conspirators.
`
`BURKE, WILLIAMS &
`SORENSEN, LLP
`ATTO RN EY S AT LAW
`LOS A NG EL ES
`
`LA #4837-2183-4227 v1
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`
`- 8 -
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`Clemens
`2.
`16. Clemens Food Group, LLC is a limited-liability company headquartered
`in Hatfield, Pennsylvania. During the relevant period, Clemens Food Group, LLC
`and/or its predecessors, wholly owned or controlled subsidiaries, or affiliates sold
`pork in interstate commerce, directly or through its wholly owned or controlled
`affiliates, to purchasers in the United States.
`17. The Clemens Family Corporation is a Pennsylvania corporation
`headquartered in Hatfield, Pennsylvania, and the parent company of Clemens Food
`Group, LLC. During the relevant period, The Clemens Family Corporation and/or
`its predecessors, wholly owned or controlled subsidiaries, or affiliates sold pork in
`interstate commerce, directly or through its wholly owned or controlled affiliates, to
`purchasers in the United States.
`JBS
`3.
`JBS USA Food Company is one of the world’s largest beef and pork
`18.
`processing companies and a wholly owned subsidiary of JBS USA Food Company
`Holdings, which holds a 78.5 percent controlling interest in Pilgrim’s Pride
`Corporation, one of the largest chicken-producing companies in the world. JBS USA
`Food Company is a Delaware corporation, headquartered in Greeley, Colorado.
`During the relevant period, JBS USA Food Company and/or its predecessors, wholly
`owned or controlled subsidiaries, or affiliates sold pork in interstate commerce,
`directly or through its wholly owned or controlled affiliates, to purchasers in the
`United States.
`Seaboard
`4.
`19. Seaboard Foods LLC is a limited-liability company headquartered in
`Shawnee Mission, Kansas, and is a wholly owned subsidiary of Seaboard
`Corporation. During the relevant period, Seaboard Foods LLC and/or its
`predecessors, wholly owned or controlled subsidiaries, or affiliates sold pork in
`interstate commerce, directly or through its wholly owned or controlled affiliates, to
`
`BURKE, WILLIAMS &
`SORENSEN, LLP
`ATTO RN EY S AT LAW
`LOS A NG EL ES
`
`LA #4837-2183-4227 v1
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`purchasers in the United States.
`Smithfield
`5.
`20. Smithfield Foods, Inc. is incorporated in the Commonwealth of
`Virginia, and an indirect wholly owned subsidiary of WH Group Limited, a Chinese
`company. Smithfield Foods is headquartered in Smithfield, Virginia. During the
`relevant period, Smithfield Foods, Inc. and/or its predecessors, wholly owned or
`controlled subsidiaries, or affiliates sold pork in interstate commerce, directly or
`through its wholly owned or controlled affiliates, to purchasers in the United States.
`Triumph
`6.
`21. Triumph Foods, LLC is a limited-liability company headquartered in St.
`Joseph, Missouri. During the relevant period, Triumph Foods, LLC and/or its
`predecessors, wholly owned or controlled subsidiaries, or affiliates sold pork in
`interstate commerce, directly or through its wholly owned or controlled affiliates, to
`purchasers in the United States.
`Tyson
`7.
`traded Delaware corporation
`is a publicly
`22. Tyson Foods, Inc.
`headquartered in Springdale, Arkansas. During the relevant period, Tyson Foods,
`Inc. and/or its predecessors, wholly owned or controlled subsidiaries, or affiliates
`sold pork in interstate commerce, directly or through its wholly owned or controlled
`affiliates, to purchasers in the United States.
`23. Tyson Prepared Foods, Inc. is a Delaware corporation headquartered in
`Springdale, Arkansas and is a wholly-owned subsidiary of Tyson Foods, Inc. During
`the relevant period, Tyson Prepared Foods, Inc. sold pork in interstate commerce,
`directly or through its wholly-owned or controlled affiliates, to purchasers in the
`United States.
`24. Tyson Fresh Meats, Inc. is a Delaware corporation headquartered in
`Springdale, Arkansas and is a wholly-owned subsidiary of Tyson Foods, Inc. During
`the relevant period, Tyson Fresh Meats, Inc. sold pork in interstate commerce,
`
`BURKE, WILLIAMS &
`SORENSEN, LLP
`ATTO RN EY S AT LAW
`LOS A NG EL ES
`
`LA #4837-2183-4227 v1
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`directly or through its wholly-owned or controlled affiliates, to purchasers in the
`United States.
`IV. FACTUAL ALLEGATIONS
`25. Starting at least as early as January 1, 2009 and continuing to the present,
`Defendants coordinated to fix, raise, maintain and stabilize pork prices. To
`implement and enforce their anticompetitive agreement, Defendants relied on a
`unique industry data sharing service known as Agri Stats, through which
`Defendants shared and monitored critical, competitively sensitive business
`information regarding each other’s production metrics, serving a critical role in
`Defendants’ price-fixing scheme, and resulting in a stable, successful anticompetitive
`cartel.
`A. Agri Stats’ Central Role in Collusion in the Broiler Industry
`26. Agri Stats has played a central role in collusion in other industries,
`including involvement in the broiler chicken industry. As alleged in the In re Broiler
`Chicken Antitrust Litigation, No. 16-cv-08637 (N.D. Ill.), the broiler producers used
`Agri Stats to implement their conspiracy to restrain production and inflate prices.
`In the broiler industry, Agri Stats collected and disseminated to the other
`27.
`members of the conspiracy disaggregated financial information (such as monthly
`operating profit, sales and cost per live pound), production volumes, capacity,
`slaughter information, inventory levels, and sales data by finished product form and
`type, amongst other competitively sensitive business information. Agri Stats reports
`contain line-by-line entries for plants, lines, and yields of various broiler facilities.
`Agri Stats relied upon (and the co-conspirators agreed to) a detailed audit process to
`verify the accuracy of data from each broiler producer’s facilities, sometimes directly
`contacting co-conspirators to verify the data. Agri Stats also provided detailed price
`reports to the broiler industry through its subsidiary, Express Markets, Inc., also
`known as EMI. Agri Stats collected data from the broiler producers weekly and
`provided its reports to broiler producers weekly and monthly.
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`BURKE, WILLIAMS &
`SORENSEN, LLP
`ATTO RN EY S AT LAW
`LOS A NG EL ES
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`LA #4837-2183-4227 v1
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`28. The detail of these reports ensured that the broiler chicken producers could
`quickly decode the information of their purported competitors. It was common
`knowledge that the detail of these Agri Stats reports allowed any reasonably informed
`producer to discern the identity of the competitors’ individual broiler complexes and
`facilities. The broiler reports, in parts, contained so few producers participating that
`the identities were obvious. Other reports contained such detailed data that it could
`be matched with the publicly stated aggregate data for larger broiler co-conspirators
`such as Tyson. Agri Stats purposefully circulated this information to top executives
`to facilitate their agreement on supply constraints and price.
`In the broiler industry, Agri Stats – known to its co-conspirators as a
`29.
`willing conduit for illicit information exchanges – conveyed information to the
`broiler chicken co-conspirators that furthered the conspiracy’s purposes by
`reassuring them that production cuts would continue, and inducing the broiler
`chicken co-conspirators to continue to act in concert to ensure that the cuts continued.
`Agri Stats’ statements in the broiler industry facilitated the implementation of the
`agreement to restrict supply.
`30. When it denied motions to dismiss in In re Broiler Chicken Antitrust
`Litigation, the district court noted that given the nature of the Agri Stats reports, the
`co-conspirators were sharing information, which raises significant antitrust
`concerns.4
`B. Agri Stats Markets its Collusive Scheme to Defendants
`31. Beginning in at least 2008, Agri Stats began to propose a series of
`benchmarks to Defendants similar to the benchmarks used to restrain competition in
`the broiler industry. Benchmarking is the act of comparing practices, methods or
`performance against those of other companies.5 Benchmarking of the type
`
`4 Memorandum Opinion and Order at 11, In re Broiler Chicken Antitrust Litigation, No. 16-cv-
`08637 (N.D. Ill. Nov. 20, 2017), ECF No. 541.
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` Antitrust Issues Related to Benchmarking and Other Information Exchanges, [cont’d next page]
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`BURKE, WILLIAMS &
`SORENSEN, LLP
`ATTO RN EY S AT LAW
`LOS A NG EL ES
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`LA #4837-2183-4227 v1
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`undertaken by Agri Stats and its co-conspirators reduces strategic uncertainty in the
`market and changes the incentives for competitors to compete, thereby enabling
`companies to coordinate their market strategies and otherwise restrict competition.
`This is especially true where benchmarking involves the exchange of commercially
`sensitive, and typically proprietary information among competitors.
`In 2008, Greg Bilbrey of Agri Stats wrote in the Advances in Pork
`32.
`Production Journal that “Benchmarking in the swine industry could range from
`simple production comparisons to elaborate and sophisticated total production and
`financial comparisons. Each and every commercial swine operation is encouraged
`to participate in some benchmarking effort.”6
`33. Agri Stats emphasized to pork producers that the goal of the agreement
`to share information was profitability, not production, and invited them again to
`participate in the benchmarking. “We must remember that the ultimate goal is
`increasing profitability – not always increasing the level of production.” Finally,
`Agri Stats told the industry that “[e]ach swine production company should be
`participating in some type of benchmarking. To gain maximum benefit, production,
`cost and financial performance should all be part of the benchmarking program.”7
`In April 2009, Agri Stats again invited swine producers to design and
`34.
`operate their own benchmarking effort. Thus, Greg Bilbrey of Agri Stats wrote:
`“Though all producers may not be part of or fit into an Agri Stats type benchmarking
`program, all producers could participate in benchmarking in some way. Commercial
`
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`Federal Trade Commission (May 3, 2011), available at:
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`https://www.ftc.gov/sites/default/files/documents/public_statements/antitrust-issues-related-
`benchmarking-and-other-information-exchanges/110503roschbenchmarking.pdf
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`(last visited December 5, 2019).
` Greg Bilbrey, Benchmarking and Cost – Production Relationships, 19 Advances in Pork
`Production Journal, 43 (2008).
` Id. at 41-46.
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`SORENSEN, LLP
`ATTO RN EY S AT LAW
`LOS A NG EL ES
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`LA #4837-2183-4227 v1
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`benchmarking opportunities are available. Producer groups could design and operate
`their own benchmarking effort.”8 Defendants accepted this offer and, beginning no
`later than 2009, created the detailed benchmarking scheme based upon and found in
`the Agri Stats reports. Their agreement was to use the exchanged benchmarking
`information to coordinate supply and stabilize as well as increase prices of pork sold
`in the United States, provide and receive information from Agri Stats, and use this
`detailed sensitive information to monitor each other’s production and pricing. The
`agreement was successful as pork prices rose significantly after the agreement was
`reached.
`35. Each and every Defendant, as well as other significant pork processors,
`identified specific executives that were responsible for transmitting data to and from
`Agri Stats relating to pork pricing, supply, slaughter, inventory, export, or production
`levels.
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`• Clemens: Joshua Rennels (Treasurer, Clemens Food Group)
`• JBS: Garry Albright (Head of Business Analysis), Kevin Arnold (Head
`of Finance), Jamie Fosbery (Analyst), Raven Goodlow (Business
`Analyst), Robbie Kearns (Business Analyst), Lisa Peters (Business
`Analyst), Eli Zoske (Cost Accountant)
`• Seaboard: Damon Ginther (Senior Director of Business Data &
`Analytics), Mel Davis (VP of Hog Procurement and Bio-Energy), Tom
`Dye (Operations Controller)
`• Smithfield: Aimee Ward (Director, Hog Finance), Kent Hilbrands (Sr.
`Director, Operations Finance), Elizabeth Barger (Data Analyst)
`• Triumph: Matt England (Chief Integrated Business Strategy Officer),
`Ken Grannas (Director Inventory/Reporting), Tom French (Director,
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`8 Greg Bilbrey, Benchmarking and Tools to Maximize Profit, London Swine Conference – Tools of
`the Trade (April 1-2, 2009) (emphasis added).
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`BURKE, WILLIAMS &
`SORENSEN, LLP
`ATTO RN EY S AT LAW
`LOS A NG EL ES
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`LA #4837-2183-4227 v1
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