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`UNITED STATES DISTRICT COURT
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`SOUTHERN DISTRICT OF CALIFORNIA
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`IN RE: PACKAGED SEAFOOD
`PRODUCTS ANTITRUST LITIGATION
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`This Document Relates To:
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`ALL ACTIONS.
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` Case No.: 15-MD-2670 DMS (MDD)
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`CLASS ACTION
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`ORDER (1) GRANTING
`PLAINTIFFS’ MOTION FOR
`RECONSIDERATION; (2)
`VACATING ORDER GRANTING
`DEFENDANTS’ MOTION TO
`DISMISS; (3) DENYING
`DEFENDANTS’ MOTION TO
`DISMISS; AND (4) DENYING AS
`MOOT PLAINTIFFS’ MOTION FOR
`CERTIFICATION OF RULE 54(b)
`JUDGMENT AND THE PARTIES’
`JOINT MOTION TO SEAL
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`(ECF Nos. 2281, 2285, 2471)
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`Pending before the Court are Plaintiffs’ Motion for Certification of a Rule 54(b)
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`Judgment (“Rule 54(b) Mot.,” ECF No. 2281-1) and Direct Action Plaintiffs’ (“DAP”)
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`Motion for Reconsideration of the Court’s Order Granting Lion Capital’s Motion to
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`Dismiss or, in the Alternative, for Entry of Final Judgment Under Rule 54(b) (“Mot. for
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`Reconsideration,” ECF No. 2284.) Plaintiff W. Lee Flowers & Co. separately joined in
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`15-MD-2670 DMS (MDD)
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`Case 3:15-md-02670-DMS-MDD Document 2781 Filed 03/21/22 PageID.244715 Page 2 of 22
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`the Rule 54(b) Motion. (ECF No. 2282.) Defendants Lion Capital LLP (“Lion Capital”)
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`and Big Catch Cayman LP (“Big Catch”) opposed, (“54(b) Opp’n,” ECF No. 2289;
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`“Reconsideration Opp’n,” ECF No. 2291), and Plaintiffs replied, (“54(b) Reply,” ECF No.
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`2300; “Reconsideration Reply,” ECF No. 2302.)1 The parties also jointly filed a motion to
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`seal. (“Mot. to Seal,” ECF No. 2471.) For the reasons set forth below, Plaintiffs’ Motion
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`for Reconsideration is granted, the Order Granting Defendants’ Motion to Dismiss
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`(“Second Lion Order,” ECF No. 2270) is vacated, and Defendants’ motion to dismiss (ECF
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`No. 1631) is denied. In light of those rulings, Plaintiffs’ Rule 54(b) motion and the parties’
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`Motion to Seal are denied as moot.
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`I.
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`BACKGROUND
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`The general background and history of this litigation is well documented and
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`extensively discussed in prior orders. (ECF Nos. 2454, 2654.) For purposes of the present
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`motions, the Court sets out only the relevant facts.
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`In July 2015, the Antitrust Division of the United States Department of Justice
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`(“DOJ”) announced its investigation into the packaged tuna industry. Criminal charges for
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`price fixing in violation of the Sherman Act, 15 U.S.C. § 1, were filed against the three
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`largest domestic producers of packaged tuna products––Tri-Union Seafoods LLC d/b/a
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`Chicken of the Sea International (“COSI”), Bumble Bee Foods LLC (“Bumble Bee”),
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`StarKist Company (“StarKist”), and their executives. Bumble Bee’s CEO Christopher
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`Lischewski2 was convicted after a jury trial. United States v. Lischewski, 860 Fed. Appx.
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`512, 2021 WL 2826474 (9th Cir. Jul. 7, 2021) (affirming conviction). He is serving a
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`prison sentence for his “leadership role in the conspiracy.” United States v. Lischewski,
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`1 The Motion for Reconsideration briefing was filed under seal. The public redacted briefs
`can be found at ECF Nos. 2285, 2295, and 2303. This Order cites to the sealed briefs.
`2 Unless otherwise noted, individuals are referred to by full names only when first
`introduced. Subsequently, they are referenced by last name only.
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`U.S. Dist. Ct. N.D. Cal. Case No. 18cr203-EMC, Am. Crim. Minutes of Jun. 16, 2020,
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`sentencing, ECF No. 692. All other defendants pled guilty.
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`In the wake of the DOJ announcement of its investigation, dozens of plaintiffs
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`initiated civil actions alleging price fixing against the three tuna producers and their parent
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`companies: (1) COSI and its owner Thai Union Group PCL (“TUG”); (2) StarKist and its
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`owner Dongwon Industries Co. Ltd. (“Dongwon”); and (3) Bumble Bee and its owners
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`Lion Capital, Lion Capital (Americas), Inc. (“Lion Americas”) and Big Catch (collectively
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`the “Lion Entities”). The civil actions were consolidated in a multidistrict litigation
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`(“MDL”) for pretrial proceedings before this Court.
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`The Lion Entities moved to dismiss the claims alleged against them. In the order
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`disposing of the motion, the Court concluded it had personal jurisdiction over the Lion
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`Entities, but that Plaintiffs stated a claim only against Lion Americas. (Order Granting in
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`Part and Denying in Part Defs.’ Mots. to Dismiss (“First Lion Order”) at 90, ECF No.
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`1362.)3 The complaint was sufficient to allege that Lion Americas directly participated in
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`the price fixing conspiracy. (Id. at 79-86.) Plaintiffs were granted leave to amend the
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`claims against Lion Capital and Big Catch. (Id. at 90.) When Plaintiffs filed their amended
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`complaints,4 Lion Capital and Big Catch again moved to dismiss, which motion was
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`granted without leave to amend.
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`DAPs filed a Motion for Reconsideration of the Second Lion Order or, alternatively,
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`for entry of a final judgment against Lion Capital and Big Catch under Rule 54(b) of the
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`Federal Rules of Civil Procedure.5 All Plaintiffs, including DAPs, also joined in a
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`3 The public redacted version of the First Lion Order can be found at ECF No. 1358.
`4 The parties have stipulated, and the Court ordered, that the Fourth Amended Complaint
`filed by the Kroger Plaintiffs (Compl., ECF No. 1475), is “in all material respects
`representative” for purposes of the Lion Entities’ motion to dismiss. (ECF Nos. 1524,
`1529, 2270.) The public redacted version of the Complaint can be found at ECF No. 1423.
`5 All further references to “Rule” or “Rules” are to the Federal Rules of Civil Procedure.
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`Case 3:15-md-02670-DMS-MDD Document 2781 Filed 03/21/22 PageID.244717 Page 4 of 22
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`separately filed Rule 54(b) Motion.6 Finally, the parties jointly filed a Motion to Seal
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`requesting the sealing of eight documents filed in support of and in opposition to Plaintiffs’
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`Motion for Reconsideration.
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`II.
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`MOTION FOR RECONSIDERATION
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`“Reconsideration is appropriate if the district court (1) is presented with newly
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`discovered evidence, (2) committed clear error or the initial decision was manifestly unjust,
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`or (3) if there is an intervening change in controlling law.” School Dist. No. IJ, Multnomah
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`County, Oregon v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993). 7 Here, Plaintiffs argue
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`reconsideration is warranted based on newly discovered evidence and because the Court
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`committed clear error in the Second Lion Order.8
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`In support of their argument of clear error, Plaintiffs raise the issue of the Court’s
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`application of United States v. Bestfoods, 524 U.S. 51, 69 (1998), in reaching the
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`conclusion that Plaintiffs failed sufficiently to allege that Eric Lindberg, Jacob Capps, and
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`Jeff Chang, dual agents of Lion Capital and Lion Americas, acted on behalf of Lion Capital
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`when they participated in the conspiracy. (Cf. Second Lion Order at 16-17 with Mot. for
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`Reconsideration at 8-12.) The Lion Entities counter that Plaintiffs should be precluded
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`6 The Rule 54(b) Motion, as well as the related opposition and reply, are incorporated by
`reference into the Motion for Reconsideration briefing, which does not add any substantive
`arguments regarding Rule 54(b) certification. (See Mot. for Reconsideration at 12;
`Reconsideration Opp’n at 1 n.1; Reconsideration Reply at 10.)
`7 Unless otherwise noted internal quotation marks, citations, ellipses, brackets, and
`footnotes are omitted from citations.
`8 Although Plaintiffs’ substantive arguments are clear, the procedural vehicle for their
`motion is less so. Plaintiffs appear to be relying on Rule 59 as the basis for their motion,
`but that Rule governs motions to alter or amend a judgment, and no judgment has been
`entered here. Regardless, the substantive standard for reconsideration is the same,
`whatever the procedural vehicle. As stated above, that standard requires a showing of (1)
`newly discovered evidence, (2) clear error or manifest injustice, or (3) an intervening
`change in controlling law, and that is the standard that applies to the present Motion for
`Reconsideration.
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`from seeking reconsideration because they failed to address this issue in their opposition
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`to the Second Lion 12(b)(6) Motion. (Reconsideration Opp’n at 2, 4.)
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`The Court disagrees. In their moving papers the Lion Entities quoted Bestfoods for
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`the hornbook proposition that “a parent corporation ... is not liable for the acts of its
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`subsidiaries.” (Mem. of P.&A. in Supp. of Lion Capital and Big Catch Renewed Consol.
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`Mot. to Dismiss (“Second Lion 12(b)(6) Mot.”) at 31, ECF No. 1630-1.)9 It was only in
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`the reply that they argued for dismissal based on the “Bestfoods presumption,” which they
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`articulated as follows, “The Supreme Court has held that ‘dual status’ agents of a parent
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`corporation and its subsidiary are presumed to be acting for the subsidiary if, as here, they
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`are employed by that subsidiary.” (Reply in Supp. of Lion Capital and Big Catch Renewed
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`Consol. Mot. to Dismiss (“Second Lion 12(b)(6) Reply”) at 2 (citing Bestfoods, 524 U.S.
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`at 69-70), ECF No. 1759.)10 Raising the “Bestfoods presumption” for the first time in the
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`reply deprived Plaintiffs of an opportunity to respond. Accordingly, Plaintiffs’ request to
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`reconsider the Second Lion Order on this basis is granted. See Dietz v. Bouldin, 579 U.S.
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`40, 45-46 (2016).
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`The issue of Lion Capital’s liability was raised in the context of a Rule 12(b)(6)
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`motion to dismiss. Plaintiffs’ allegations must therefore meet the pleading standard of Rule
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`8(a)(2). The Rule
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`requires only a short and plain statement of the claim showing that the pleader
`is entitled to relief, in order to give the defendant fair notice of what the claim
`is and the grounds upon which it rests. While a complaint attacked by a Rule
`12(b)(6) motion to dismiss does not need detailed factual allegations, a
`plaintiff's obligation to provide the grounds for his entitlement to relief
`requires more than labels and conclusions, and a formulaic recitation of the
`elements of a cause of action will not do. Factual allegations must be enough
`to raise a right to relief above the speculative level on the assumption that all
`the allegations in the complaint are true (even if doubtful in fact).
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`9 The public redacted version can be found at ECF No. 1631-1.
`10 The public redacted version can be found at ECF No. 1760.
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`Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). The Court must accept as true all
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`allegations of material fact in the complaint and construe them in the light most favorable
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`to the party opposing dismissal. Id.
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`On a Rule 12(b)(6) motion courts generally may not consider material outside the
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`complaint. Khoja v. Orexigen Therapeutics, Inc., 988 F.3d 988, 998 (9th Cir. 2018).
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`“There are two exceptions to this rule: the incorporation-by-reference doctrine, and judicial
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`notice under Federal Rule of Evidence 201.” Id. In determining whether Plaintiffs stated
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`a claim, the Court considers neither the evidence offered by Plaintiffs nor affidavits offered
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`by the Lion Entities insofar as they fall outside these exceptions.
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`As set out in the First Lion Order, Plaintiffs sufficiently alleged Lion Americas’
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`direct participation in the conspiracy. (First Lion Order at 86.) The finding was based on
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`detailed allegations that Lindberg, Capps, and Chang communicated with Lischewski and
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`other Bumble Bee executives regarding pricing agreements with StarKist and COSI and
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`cooperated in Bumble Bee’s efforts to police and enforce them. (Id. at 81-84.) The
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`principal issue on reconsideration is whether Plaintiffs also sufficiently alleged
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`participation by Lion Americas’ parent entity Lion Capital.
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`A.
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`Plaintiffs’ Allegations
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`At all relevant times, Lion Capital was a British private equity firm specializing in
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`investments in the consumer sector. (Compl. ¶ 189; see also Am. and Restated Limited
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`Liability Partnership Deed Relating to Lion Capital LLP (“LLP Agreement”), ECF No.
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`1630-3; see also ECF No. 1721-1.)11 Its founder and Managing Partner was Lydon Lea.
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`(Compl. ¶ 189; LLP Agreement §§ 1.1, 9.1.) Lindberg, Capps, and Chang were among its
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`11 The Court considers the LLP Agreement because it is referenced in the Complaint.
`(Compl. ¶¶ 192-93.) See Khoja, 988 F.3d at 1002.
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`Members. (Compl. ¶¶ 189, 192; see also LLP Agreement, Schedule 1.) Lea, Lindberg,
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`and Capps were also among its Executive Officers.12
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`Lion Americas was a Delaware corporation and Lion Capital’s wholly owned
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`subsidiary. (Compl. ¶ 190; see also Lion Americas Form ADV (“Form ADV”), ECF No.
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`2291-2, pages 97-117, Items 2, 3 & Schedule A.)13 Lion Americas was an SEC-registered
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`investment advisor with one client—Lion Capital. (Form ADV, Items 2, 5, 7.) Capps
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`served as Lion Americas’ President, Lindberg was one of its directors, and Chang was an
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`employee. (Compl. ¶¶ 189-97.) Plaintiffs adopted the Lion Entities’ position that although
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`Lea was an officer of Lion Americas, he was not a Lion Americas employee but was
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`exclusively a Lion Capital employee. (Id. ¶ 215 & n.13.)
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`Lion Capital’s business model was to acquire companies, increase their market
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`value, and sell them at a profit. (First Lion Order at 78.) Lion Capital held itself out to
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`potential investors as “focus[sed] solely on retail and consumer businesses” and possessing
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`“a team with an intimate knowledge of the way consumers and brands interact[.]” (Compl.
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`¶ 216.) It distinguished itself from “average” private equity firms by its philosophy of
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`getting “down to the very granular knowledge” of the businesses it owned. (Id. ¶¶ 215,
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`216.)
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`12 To the extent they provide background and undisputed facts, the Court takes judicial
`notice of the SEC Form D, Stock/Securities Offering, filed Oct. 21, 2010, and Form D as
`amended, filed October 17, 2011, by the Lion Capital Fund III, L.P. (the “Fund”)
`(collectively “Form D”), found at https://sec.report/Document/0001498249-10-000001
`and https://sec.report/Document/0001498249-11-000001, respectively. See Khoja, 899
`F.3d at 999; Fed. R. Evid. 201. According to Form D, the persons related to the Fund were
`Lea, Capps, and Lindberg, among others, each identified as “Executive Officer ... of Lion
`Capital LLP – manager of Issuer[.]” Form D defines “Issuer” as the Fund.
`13 The Court takes judicial notice of Lion Americas’ Form ADV dated March 30, 2018,
`which was filed with the Securities and Exchange Commission (“SEC”). See Khoja, 899
`F.3d at 999; Fed. R. Evid. 201. By virtue of his majority stake in Lion Capital, Lea
`indirectly owned nearly all of Lion Americas’ shares. (Form ADV, Schedule B.) Because
`Form ADV itself does not contain page numbers, page references are to the numbers
`generated by the CM/ECF System.
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`Lion Capital acquired Bumble Bee in December 2010 (Compl. ¶¶ 189, 210, 240; see
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`also First Lion Order at 4) and became Bumble Bee’s equitable owner. (First Lion Order
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`at 33.) The equitable ownership finding encapsulates the convoluted ownership structure
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`of the Bumble Bee investment (see id. at 31-33 & n.21; see also Compl. ¶¶ 200-05) and is
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`based on the facts that Lion Capital exercised control over the investment fund, Lion
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`Capital Fund III, L.P. (the “Fund”), which invested in Bumble Bee, and that Lion Capital
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`was the Fund’s “managing agent.”14 (First Lion Order at 33; Form D (identifying Lion
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`Capital as the Fund’s “manager”).)
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`Plaintiffs contend that Lion Capital learned of Bumble Bee’s participation in the
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`conspiracy before the acquisition. (Compl. ¶¶ 208-09.) During the due diligence process,
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`Lion Capital had access to Bumble Bee’s financial records and executives who are now
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`known to have participated in the conspiracy. (Id. ¶ 208.) Specifically, Lion Capital
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`inquired about the increase in Bumble Bee’s per-can profit margins since 2006, and learned
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`it was the result of a price increase and the can downsize in 2008. (Id.) It can reasonably
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`be inferred that, as a “sophisticated investment firm” (First Lion Order at 81) and in keeping
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`with its claims of expertise in the consumer sector and “granular knowledge” of the
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`companies it acquired, Lion Capital knew of the contemporaneous industry-wide
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`downward pressure on product pricing due to the falling price of raw tuna and decreasing
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`market demand for canned tuna. (Compl. ¶¶ 208, 55-60; see also First Lion Order at 77-
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`79, 81.) In a competitive market canned tuna prices would have decreased. Bumble Bee
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`prices increased.
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`Just weeks before completing the acquisition, Lion Capital separately met with
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`Dongwon and TUG executives. (Compl. ¶¶ 210, 211.) In arranging the meeting with
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`Dongwon Chairman Jae-chul Kim on November 15, 2010, Lindberg explained he wanted
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`14 Like Lion Capital, the Fund was established in the United Kingdom. Its address was
`“c/o Lion Capital LLP.” It was registered with the SEC in the United States. (See
`https://sec.report/CIK0001498249.)
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`to meet on an “owner to owner” basis. (Id. ¶ 211.) Accordingly, Lindberg held himself
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`out as a representative of Lion Capital, soon-to-be owner of Bumble Bee.
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`In preparing Lindberg for the meeting, Lischewski told him that a “key message is
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`to ensure Dongwon that Lion will support rational[] market behavior by Bumble Bee.”
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`(Compl. ¶¶ 210, 223.) Defendants have argued that “rational” meant just that and nothing
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`more. However, after the guilty pleas and Lischewski’s conviction, in the context of the
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`pre-acquisition meetings with competitors, and in light of other allegations in the
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`Complaint which shed additional light on the issue (see, e.g., id. ¶¶ 210, 221, 234), it can
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`reasonably be inferred that “rational market behavior” was a euphemism for collusive
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`pricing agreements among Bumble Bee, StarKist, and COSI. (See also First Lion Order at
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`49.) Prior to the meeting, Lindberg reviewed the “talking points” with Lea and others at
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`Lion Capital. (Compl. ¶ 211.)
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`Plaintiffs alleged sufficient material facts to support a reasonable inference that Lion
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`Capital learned prior to completing the acquisition that Bumble Bee’s profits were the
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`product of pricing actions which would be untenable in a competitive market and were in
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`fact the product of anticompetitive agreements. Lion Capital proceeded to acquire Bumble
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`The “primary purpose” of Lion Capital was “to carry on, directly or indirectly
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`through its Associates, the business of the provision of investment management (and/or
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`advisory) services to the Funds[,]” including the Fund which invested in Bumble Bee.
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`(LLP Agreement ¶ 3.3.) Lion Americas was a Lion Capital “Associate.” (LLP Agreement
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`§ 1.1.)
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`Lion Capital used Lion Americas to carry out some of its management duties and
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`paid Lion Americas on a “cost plus fee” basis. (See Form ADV, Item 5; Compl. ¶¶ 195,
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`196.) Lion Capital was Lion Americas’ only client, Lion Americas was not involved in
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`any other business other than advising Lion Capital, and it had no direct or indirect
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`affiliation with the Fund. (See Form ADV, Items 5-7; Compl. ¶ 199.) Lion Americas had
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`no other source of income and was entirely dependent on Lion Capital for funding.
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`(Compl. ¶ 199; Form ADV, Item 5.) Based on the foregoing, the allegations support a
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`reasonable inference that Lion Americas had no direct ability to manage Bumble Bee, and
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`that Lion Capital, as Bumble Bee’s equitable owner and managing agent of the Fund, had
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`the ability to manage Bumble Bee.
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`The Lion Entities’ website stated that Lion Capital “closely managed the business
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`affairs of the companies in which it invests.” (Compl. ¶ 216.) Specifically, it claimed,
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`“We work closely with management to see exactly what a brand is capable of achieving,
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`and then take it to new heights,” and, based on the consumer brand focus, “our team is
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`uniquely positioned to work with management to identify the right strategies for
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`revitalizing operations. (Id.) (emphases added). Lion Capital “ensure[s] that [its]
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`companies have the best management talent to execute the vision that we develop in a
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`collaborative partnership” while never forgetting “the responsibility for successful
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`outcomes in our companies rests with us [Lion Capital].” (Id.) (emphasis added). At the
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`time of the acquisition, Lischewski disseminated an internal memorandum to Bumble Bee
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`employees stating that “the Lion Entities team planned to be ‘actively involved’ in the
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`business.” (Id. ¶ 217.) Lion Capital installed Lea, Lindberg, and Capps on Bumble Bee’s
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`board of directors, thus controlling three of its four seats. (Id. ¶¶ 217, 205.)
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` Lion Capital oversaw the Bumble Bee investment from its office in Los Angeles,
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`California, near Bumble Bee’s headquarters and principal place of business in San Diego.
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`(Compl. ¶¶ 189, 31.) Lion Americas operated out of the same office. (Id. ¶ 190.) Dual
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`agents Lindberg, Capps, and Chang also worked out of the Los Angeles office. (Id. ¶¶
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`189, 190.)
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`As the sole Managing Partner of Lion Capital, Lea had the discretion and authority
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`to admit new Members, determine their duties and compensation, and expel them from
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`Lion Capital. (LLP Agreement ¶¶ 11, 12.1(b), 14.1, 1.1.) Further, the LLP Agreement
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`sets out the “Members’ Obligations[,]” as follows:
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`Each Member shall, unless the Managing Partner otherwise agrees, devote the
`whole of his time and attention to the performance of his obligations on behalf
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`of the LLP and its Associates, as required by the Managing Partner and shall
`not engage in other business activities without the consent of the Managing
`Partner. The Managing Partner may determine the duties, role and obligations
`of each of the Members from time to time.
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`(LLP Agreement ¶¶ 14 & 14.1.) The Lion Entities have argued that this provision does not
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`mean that Lindberg, Capps, or Chang had to devote their entire time to duties as assigned
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`by Lea. (Second Lion 12(b)(6) Reply at 6.) They point to the language that the Members
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`had to devote their time to obligations on behalf of Lion Capital and its Associates, Lion
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`Americas included, and that Lea would determine their duties merely from time to time and
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`not necessarily all of the time. (Second Lion 12(b)(6) Reply at 6) (second emphasis added).
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`The Court does not consider the LLP Agreement in the abstract but in the context of
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`other factual allegations. Plaintiffs alleged that Lea assigned Lindberg to be principally
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`responsible for managing the Bumble Bee investment and that he assigned Capps and
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`Chang to assist Lindberg. (Compl. ¶ 194; see also id. ¶ 191.) These assignments were
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`consistent with the LLP Agreement. No facts have been alleged or are discernible from
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`judicially noticed documents to suggest that Lindberg, Capps, or Chang engaged in any
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`business activities other than as assigned by Lea. In context, it is apparent that Lea directed
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`Lindberg, Capps, and Chang’s actions with regard to Bumble Bee to meet Lion Capital’s
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`objectives as the managing agent of the Bumble Bee investment.
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`Lion Capital closely monitored Bumble Bee’s performance as well as competitors’
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`compliance with the pricing agreements and set ambitious goals for Bumble Bee (Compl.
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`¶¶ 213, 221, 232), as it wanted to ensure Bumble Bee’s continued “supra-competitive”
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`profits and “investment grade returns” to the Fund. (Id. ¶¶ 202, 213.) Lion Capital
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`“incentivized and rewarded” Bumble Bee executives15 with Big Catch shares16 to meet the
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`goals it set for the benefit of its investors. (Id. ¶ 202.)
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`Lea attended most Bumble Bee board meetings, which were often followed by off-
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`the-record “executive sessions.” (Compl. ¶¶ 218, 220, 194; see also id. ¶ 217.) When Lea
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`was unable to attend, he received detailed private briefings. (Id. ¶ 220.) Lea’s briefing
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`included competitor information and developments which revealed collusive dealings with
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`Bumble Bee’s competitors. (Id. ¶¶ 217, 228.) To the extent Lea did not himself directly
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`communicate with Bumble Bee executives, Lindberg, Capps, and Chang provided reports.
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`(Id. ¶ 220.) For example, on March 28, 2012, Chang reported to Lea about a board meeting
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`the day before. His report included non-public information about StarKist and COSI
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`profitability and plans for Bumble Bee to closely align its list pricing with them as of April
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`1, 2012. (Id.)
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`Plaintiffs cite another example from July 2012, when Lea “complained” to Lindberg
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`that Bumble Bee had missed earnings projections for the first half of 2012 and asked for
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`some “good news” to report to the investors. (Compl. ¶ 221.) Lindberg responded that the
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`failure to meet the goal would not repeat itself because it was the result of pricing issues
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`“caused by StarKist’s dysfunctional management team which was fired by Dongwon,” and
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`that StarKist was “now in lockstep with us in setting pricing rationally.” (Id.) These
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`specific allegations support Plaintiffs’ assertion that Lion Capital knew of and encouraged
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`Bumble Bee’s collusive activities.
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`The allegations of Lion Capital’s involvement in the conspiracy are underscored by
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`Bumble Bee’s Plea Agreement, which suggests that Lion Capital was not merely passively
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`involved but had meaningful information to contribute to the then-ongoing investigation.
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`15 The executives included Lischewski, Kenneth Worsham, and Walter Scott Cameron, all
`of whom have either pleaded guilty to, or were found guilty of, participating in the
`conspiracy.
`16 Big Catch was the Lion Entity whose purpose was to hold Bumble Bee stock. (Compl.
`¶ 200.)
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`The Plea Agreement required Bumble Bee’s “parent companies,” including Lion Capital,
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`to provide full cooperation with the government investigation and potentially pay
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`additional fines on behalf of Bumble Bee. (U.S. v. Bumble Bee, N.C. Cal. Case No.
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`17cr00249, Am. Plea Agreement ¶¶ 9, 13, 14, ECF No. 32; see also id. Tr. of Proceedings
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`(“Tr.”) at 10-11, ECF No. 36; see also Compl. ¶ 205.) The Lion Entities were represented
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`at Bumble Bee’s change of plea hearing and sentencing by the firm representing them in
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`this MDL. (See Tr. at 3.) Moreover, in this MDL, it was Lion Capital that produced
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`“crucial” email communications between Lischewski and the Lion Entities. (Compl. ¶
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`181.)
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`Consistent with its objective to achieve maximum investor returns for its Fund, Lion
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`Capital was involved in policing compliance and enforcing collusive pricing agreements.
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`For example, in early 2012, TUG President and CEO Thiraphong Chansiri contacted
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`Lindberg asking how they could “work together on the owner level” to help “improve” the
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`industry. (Compl. ¶ 230.) Lindberg heartily agreed with Chansiri’s “sentiments about the
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`negative industry atmosphere.” (Id.) This exchange was followed by a meeting between
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`them to discuss the issues. (Id. ¶ 231.)
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`The Court has already determined that the alleged email exchange supports a
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`reasonable inference that TUG and Lion Capital sought to clamp down on what they
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`perceived as “cheating” on the pricing agreements. (First Lion Order at 82-83.) In this
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`instance, the Court focuses on the fact that Chansiri reached out to Lindberg “on the owner
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`level.” Lindberg had previously held himself out as a representative of Bumble Bee’s
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`owner (Cf. Compl. ¶ 211), and in fact was a Lion Capital Executive Officer (Form D). It
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`is therefore not surprising that he was contacted in that capacity. These specific allegations
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`support a reasonable inference that Lindberg acted on behalf of Lion Capital when he
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`engaged in the policing and enforcement of the collusive agreements.
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`Continuing to secure Bumble Bee’s high profit margins, achievable only through
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`collusion, by perpetuating and enforcing pricing agreements was to Lion Capital’s benefit.
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`(First Lion Order at 78.) This strategy was poised to pay off when Lion Capital announced
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`plans to sell Bumble Bee to TUG in 2014. Lion Capital acquired Bumble Bee for $980
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`million in December 2010 and had entered into an agreement to sell it to TUG in late 2014
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`for $1.51 billion—an increase of approximately $530 million in just four years. (Compl.
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`¶¶ 189, 209, 213, 240.) Upon announcing the transaction, Lea issued a statement:
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`We are proud to have played a significant role in the evolution of Bumble Bee
`over the last 4 years and would like to thank our partners, Chris [Lischewski]
`and the management team, for helping us achieve such a successful return on
`our investment.
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`(Id. ¶ 215.) The deal fell apart after the DOJ “informed the companies it had serious
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`concerns that the proposed transaction would harm competition.” (DOJ Press Release
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`dated Dec. 3, 2015, cited in Compl. ¶ 209 n.12.)
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`B.
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`Legal Arguments and Authorities
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`In their opposition to the Second Lion 12(b)(6) Motion Plaintiffs argued that
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`Lindberg, Capps, and Chang acted as agents of Lion Capital. (Pls’ Resp. to Lion Capital
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`and Big Catch Renewed Consol. Mot. to Dismiss (