Case 1:19-cv-21551-CMA Document 446 Entered on FLSD Docket 10/27/2021 Page 1 of 13
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF FLORIDA
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`CASE NO. 19-21551-CIV-ALTONAGA/Louis
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`In re:
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`FARM-RAISED SALMON
`AND SALMON PRODUCTS
`ANTITRUST LITIGATION
`_____________________________/
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`ORDER
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`THIS CAUSE came before the Court on the Direct Purchaser Plaintiffs’ Motion for Leave
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`to Amend Complaint [ECF No. 423], accompanied by supporting exhibits [ECF Nos. 423-1–423-
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`2], filed on September 23, 2021. Defendants filed an Opposition [ECF No. 434], along with
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`supporting exhibits [ECF Nos. 434-1–434-5], to which Plaintiffs filed a Reply [ECF No. 442].
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`The Court has carefully considered the parties’ written submissions, the record, and applicable
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`law. For the following reasons, the Motion is granted.
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`Background. The Court assumes the reader’s familiarity with the underlying allegations
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`and claims raised in this case, which are found in the March 23, 2021 Order Denying Defendants’
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`Motion to Dismiss the Second Consolidated Amended Direct Purchaser Class Action Complaint
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`for Failure to State a Claim [ECF No. 307]. (See id. 1–15).1 In the operative Scheduling Order
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`[ECF No. 308], the Court set a deadline of September 23, 2021 for the filing of motions for leave
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`to amend pleadings. (See id. 1). The current operative complaint is Plaintiffs’ Second
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`Consolidated Amended Direct Purchaser Class Action Complaint (“SCAC”) [ECF Nos. 246, 251-
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`1].
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`Plaintiffs timely submitted the present Motion, seeking leave to file a Third Consolidated
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`1 The Court uses the pagination generated by the electronic CM/ECF database, which appears in the headers
`of all court filings.
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`Case 1:19-cv-21551-CMA Document 446 Entered on FLSD Docket 10/27/2021 Page 2 of 13
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`CASE NO. 19-21551-CIV-ALTONAGA/Louis
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`Amended Direct Purchaser Class Action Complaint (“TCAC”) that includes the following
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`amendments: “(1) non-substantive changes to reflect that certain plaintiffs have been removed . .
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`. and to delete no-longer-relevant background information regarding Defendants’ production of
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`documents; and (2) additional allegations about the relevant production market that have been
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`added following a recent meet and confer with Defendants’ counsel.” (Mot. 2 (alteration added)).
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`Specifically, given that Defendants recently advised Plaintiffs that they do not believe the SCAC
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`states a rule of reason claim, Plaintiffs would like to amend their pleading to “clarify that they
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`assert a Sherman Antitrust Act claim that can be judged either under the per se or rule of reason
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`standard[].” (Id. (emphasis in original; alteration added)).
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`Standards. Under Federal Rule of Civil Procedure 15(a), leave to amend a complaint
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`“shall be freely given when justice so requires.” Espey v. Wainwright, 734 F.2d 748, 750 (11th
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`Cir. 1984) (quotation marks and citation omitted). The district court’s discretion under Rule 15(a)
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`is “extensive[.]” Hargett v. Valley Fed. Sav. Bank, 60 F.3d 754, 761 (11th Cir. 1995) (alteration
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`added; citation omitted). The Supreme Court has directed that leave to amend should be denied
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`only in cases marked by undue delay, bad faith or dilatory motive, futility of amendment, or undue
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`prejudice to the opposing party. See Foman v. Davis, 371 U.S. 178, 182 (1962). The Eleventh
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`Circuit has further explained that “[u]nless there is a substantial reason to deny leave to amend,
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`the discretion of the district court is not broad enough to permit denial.” Thomas v. Town of Davie,
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`847 F.2d 771, 773 (11th Cir. 1988) (alteration added; quotation marks and citation omitted).
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`Discussion. Defendants raise two Foman factors as reasons for the Court to deny
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`Plaintiffs’ Motion: undue delay and undue prejudice. (See generally Opp’n). The Court addresses
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`each in turn.
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` 2
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`CASE NO. 19-21551-CIV-ALTONAGA/Louis
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`Undue Delay. Defendants argue Plaintiffs unduly delayed in asserting the rule of reason
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`theory and insist Plaintiffs “did not include any market-definition or harm-to-competition
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`allegations, as required to plead a rule of reason claim.” (Id. 5). They further contend Plaintiffs’
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`subsequent court filings confirm Plaintiffs’ intention to solely litigate a per se theory (id. 5–6) and
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`summarize their argument as follows:
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`In short, for over two years, Plaintiffs consistently told Defendants (and the
`Court) that they were pursuing a per se price-fixing claim and only a per se claim.
`They went so far as to expressly tell Defendants that they were not pursuing a rule
`of reason claim to resist discovery that would plainly be relevant to a rule of reason
`theory. When Defendants sought to confirm Plaintiffs’ position, Plaintiffs sat silent
`for two months, while document discovery of Defendants went forward at a rapid
`pace.
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`(Id. 7–8).
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`According to Plaintiffs, Defendants do not cite any on-point case law that compels the
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`denial of a request for leave to amend on the basis of undue delay in a situation such as this one,
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`where the scheduling order deadline for amendments was complied with, discovery is open, and
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`summary judgment motions and trial are over a year away. (See Reply 7–8; see Opp’n 5–7).
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`Plaintiffs have the better position.
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`In the context of undue delay, the “mere passage of time, without anything more, is an
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`insufficient reason to deny leave to amend.” Floyd v. Eastern Airlines, Inc., 872 F.2d 1462, 1490
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`(11th Cir. 1989) (citations omitted), rev’d on other grounds, 499 U.S. 530 (1991). By contrast,
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`“[p]rejudice and undue delay are inherent in an amendment asserted after the close of discovery
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`and after dispositive motions have been filed, briefed, and decided.” Campbell v. Emory Clinic,
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`166 F.3d 1157, 1162 (11th Cir. 1999) (alteration added; citation omitted). Moreover, “[a] district
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`court may find undue delay when the movant knew of facts supporting the new claim long before
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`the movant requested leave to amend, and amendment would further delay the proceedings.”
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` 3
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`CASE NO. 19-21551-CIV-ALTONAGA/Louis
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`Tampa Bay Water v. HDR Eng’g, Inc., 731 F.3d 1171, 1186 (11th Cir. 2013) (alteration added;
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`citations omitted), abrogated on other grounds by CSX Transp., Inc. v. Gen. Mills, Inc., 846 F.3d
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`1333 (11th Cir. 2017); see also id. at 1187 (holding the district court did not abuse its discretion
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`in denying a motion for leave to amend brought after the close of discovery where the movant
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`knew “the basis for [the amendment] for almost a year[,]” “amendment would prejudice [the
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`opponent],” and amendment “would require additional discovery and further delay the trial”
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`(alterations added)).
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`Defendants fail to cite any analogous precedent where a court has found undue delay, likely
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`because the Eleventh Circuit’s decisions affirming district courts’ denials of leave to amend are
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`radically distinguishable from the present case. (See Opp’n 5–8). See, e.g., Nolin v. Douglas
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`Cnty., 903 F.2d 1546, 1551 (11th Cir. 1990) (affirming district court’s denial of leave to amend
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`for undue delay where “both the parties and the court were fully prepared for trial and the addition
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`of a new claim would have re-opened the pretrial process and delayed the trial, and [the plaintiff’s]
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`attorney had sufficient opportunity to request a timely amendment before the pretrial order had
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`been submitted” (alteration added)), overruled on other grounds by McKinney v. Pate, 20 F.3d
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`1550 (11th Cir. 1994); Rhodes v. Amarillo Hosp. Dist., 654 F.2d 1148, 1154 (5th Cir. 1981) (same
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`result where a party moved for leave to amend 30 months after the original complaint and only
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`three weeks before trial, and the only justification offered for the delay was plaintiff’s retention of
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`a new attorney); Burger King Corp. v. Weaver, 169 F.3d 1310, 1319 (11th Cir. 1999) (same result
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`where “forty months had passed since the filing of the original counterclaim, the new counts would
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`require proof of different facts, and the only apparent reason for the new claims was [defendant’s]
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`retention of new counsel” (alteration added)).
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`Case 1:19-cv-21551-CMA Document 446 Entered on FLSD Docket 10/27/2021 Page 5 of 13
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`CASE NO. 19-21551-CIV-ALTONAGA/Louis
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`Here, Plaintiffs timely seek leave to amend. The class certification discovery deadline is
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`not until March 23, 2022; discovery does not close until December 2, 2022; the dispositive motions
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`deadline is not until January 3, 2023; and trial is set to occur during the Court’s two-week trial
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`calendar beginning May 22, 2023. (See Sched. Order 1–2).
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`Defendants also cite two antitrust cases where parties sought leave to amend; both are
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`unpersuasive in this context. (See Opp’n 8 (citing In re Aluminum Warehousing Antitrust Litig.,
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`No. 13-md-2481, 2016 WL 1629350, at *8 (S.D.N.Y. Apr. 25, 2016); Kelsey K. v. NFL Enters.,
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`LLC, 757 F. App’x 524, 527 n.3 (9th Cir. 2018))). The first, In re Aluminum Warehousing, dealt
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`with a request for leave to amend brought after the scheduling order deadline had passed and was
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`thus subject to the Rule 16(b)(4) good cause standard, which the court held the parties failed to
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`meet. See 2016 WL 1629350, at *1, 4–8. The good cause standard does not apply here because
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`Plaintiffs timely moved for leave to amend before the expiration of the Scheduling Order deadline.
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`The second case, Kelsey K., is likewise inapt. See 757 F. App’x 524. There, the court
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`denied leave to amend where the plaintiff failed to sufficiently plead a rule of reason claim because
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`she provided “no explanation” for her failure to allege facts relevant to a rule of reason analysis,
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`and “the amendments that [she] propose[d] would not cure the[] defects.” Id. at 527 & n.3
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`(alterations added; citation omitted). Here, Plaintiffs’ SCAC survived a motion to dismiss, and
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`Plaintiffs provide a justification for why they now seek to amend their claims — namely, that
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`Defendants, after previously stating they “‘were unable to locate any limitation to a per se case in
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`Plaintiffs’ pleadings’” (Reply 8 (quoting Opp’n, Ex. 2, Email from Ryan W. Marth [ECF No. 434-
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`2] 2)), later implied during a conferral that they viewed the SCAC as only asserting a per se claim,
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`to the exclusion of a rule of reason claim (see Reply 8; see also Mot. 2, 7).
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`Case 1:19-cv-21551-CMA Document 446 Entered on FLSD Docket 10/27/2021 Page 6 of 13
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`CASE NO. 19-21551-CIV-ALTONAGA/Louis
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`Undue Prejudice.
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`The crux of Defendants’ argument is that Plaintiffs are seeking to assert a new theory of
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`liability. (See generally Opp’n). To be sure, courts routinely grant leave to amend even where a
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`party seeks to assert new theories of liability or claims. See, e.g., Stewart v. Bureaus Inv. Grp. No.
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`1, LLC, 24 F. Supp. 3d 1142, 1164–65 (M.D. Ala. 2014) (granting leave to amend over objection
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`of undue delay to allow plaintiff to assert new theories of liability four years after the inception of
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`the case); Gropp v. United Airlines, Inc., 847 F. Supp. 941, 945 (M.D. Fla. 1994) (“A change of
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`the legal theory of the action cannot be accepted as the test of the propriety of a proposed
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`amendment.” (citation omitted)); Travelers Indem. Co. of Conn. v. Richard McKenzie & Sons,
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`Inc., No. 8:17 cv-2106, 2017 WL 10295897, at *2 (M.D. Fla. Sept. 6, 2017); James Ventures, L.P.
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`v. Timco Aviation Servs., Inc., No. 06-60420-Civ, 2007 WL 9700499, at *1 (S.D. Fla. June 12,
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`2007). That said, Foman’s prejudice factor imposes an important limitation on a party’s ability to
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`assert new theories or claims. See Tampa Bay Water, 731 F.3d at 1186 (“[P]rejudice is especially
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`likely to exist if the amendment involves new theories of recovery or would require additional
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`discovery[.]” (alterations added; quotation marks and citation omitted)).
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`Defendants insist they will suffer undue prejudice because (1) “Plaintiffs’ new claim will
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`significantly expand the scope of the case, requiring the parties and the [C]ourt to litigate an
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`entirely new set of issues” (Opp’n 9 (alteration added)); (2) “Plaintiffs’ new claim targets
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`fundamentally distinct anticompetitive conduct” (id. 10); and (3) Plaintiffs disclaimed the rule of
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`reason theory (see id. 11). Plaintiffs assert their operative pleading encompasses a rule of reason
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`claim (and, moreover, they were not required to specifically plead which theory they would later
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`rely on).2 (See Mot. 8–10; Reply 3–4, 6, 9–11). They further argue that “[t]he only thing
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`2 Plaintiffs think the quick-look standard, an approach that lies “‘somewhere on the continuum between the
`per se rule and the rule of reason’” approach, should apply here. (Reply 9 n.5 (quoting In re Blue Cross
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`Case 1:19-cv-21551-CMA Document 446 Entered on FLSD Docket 10/27/2021 Page 7 of 13
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`CASE NO. 19-21551-CIV-ALTONAGA/Louis
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`Defendants have identified that they would do differently is seek discovery of fish other than
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`salmon[,]” which Plaintiffs contend is irrelevant and, even if the Court deems it relevant,
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`“Defendants still have more than a year to collect that discovery under the current schedule.”
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`(Reply 10 (alterations added)). Plaintiffs summarize: “The mere possibility that a defendant may
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`have ‘to do more work than it otherwise would have performed without the amendment does not
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`support a finding of prejudice.’” (Id. 11 (quoting DeCurtis LLC v. Carnival Corp., No. 20-22945-
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`Civ, 2021 WL 493758, at *4 (S.D. Fla. Feb. 10, 2021))). Here again, the Court agrees with
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`Plaintiffs.
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`The leading Eleventh Circuit case on amendment involving new legal theories, Tampa Bay
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`Water, held that a district court did not abuse its discretion in denying leave to amend where the
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`movant “knew many of the facts supporting its two new claims . . . for almost a year prior to
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`requesting leave to amend.” 731 F.3d at 1186–87 (alteration added). Importantly, the district court
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`found prejudice because amendment “would introduce an entirely new theory of recovery into the
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`case after the close of discovery[,]” which would “require additional discovery and further delay
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`the trial.” Id. at 1187 (emphasis and alteration added). This close-of-discovery distinction is, as
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`one court put it, “critical[.]” Brantley Cnty. Dev. Partners, LLC v. Brantley Cnty., No. 5:19-cv-
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`109, 2020 WL 3621319, at *2 n.3 (S.D. Ga. July 2, 2020) (alteration added). Here, the discovery
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`cut-off is over a year away, and there is no indication that permitting amendment will delay the
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`trial.
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`Blue Shield Antitrust Litig., 26 F. Supp. 3d 1172, 1185 (N.D. Ala. 2014))). “[The quick look approach]
`applies where an observer with even a rudimentary understanding of economics could conclude that the
`arrangements in question would have an anticompetitive effect on customers and markets.” Procaps S.A.
`v. Patheon, Inc., 845 F.3d 1072, 1084 n.3 (11th Cir. 2016) (alteration added; quotation marks and citation
`omitted).
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`CASE NO. 19-21551-CIV-ALTONAGA/Louis
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`The standard under Foman is “undue prejudice[,]” 371 U.S. at 182 (emphasis and alteration
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`added), which does not preclude an amendment solely because it may result in additional discovery
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`while the discovery period is still open. Put differently, the possibility that Defendants may have
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`“to do more work than [they] otherwise would have performed without the amendment does not
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`support a finding of [undue] prejudice.” DeCurtis LLC, 2021 WL 493758, at *4 (alterations added;
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`quotation marks and citation omitted).
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`Further, the Court is not convinced that the TCAC actually pleads a new theory of recovery,
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`i.e., that Defendants were not on notice of Plaintiffs’ intent to pursue a rule of reason claim, even
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`if secondary and alternative to a per se theory. First, an examination of the SCAC reinforces
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`Plaintiffs’ arguments that the proposed amendment includes information that is consistent with the
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`SCAC. (See Reply 3–4 (citing SCAC ¶¶ 7, 102, 104, 197–99, 134, 240, 255–64, 275, 301–10);
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`see also SCAC ¶¶ 132, 151, 231, 232, 252, 296). Second, the parties’ email correspondence (cited
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`by Defendants) indicates that Defendants understood Plaintiffs’ SCAC to potentially encompass a
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`rule of reason claim. (See Email from Ryan W. Marth 2). A brief discussion of the differences
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`between the proof requirements of a per se versus rule of reason theory is helpful.
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`“Per se violations ‘are limited to a very small class of antitrust practices whose character
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`is well understood and that almost always harm competition.’” United Am. Corp. v. Bitmain, Inc.,
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`18-cv-25106, 2021 WL 1807782, at *23 (S.D. Fla. Mar. 31, 2021) (quoting Jacobs v. Tempur-
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`Pedic Int’l, Inc., 626 F.3d 1327, 1334 (11th Cir. 2010)). By contrast, the flexible “rule of reason”
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`analysis requires “the factfinder [to] weigh[] all of the circumstances of a case” before deciding
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`whether the conduct is illegal. Cont’l T.V., Inc. v. GTE Sylvania Inc., 433 U.S. 36, 49 (1977)
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`(alterations added; footnote call number omitted). “Under rule of reason analysis, a plaintiff may
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`show either actual or potential harm to competition[,]” and must also “identify the relevant market
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` 8
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`CASE NO. 19-21551-CIV-ALTONAGA/Louis
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`in which the harm occurs.” Jacobs, 626 F.3d at 1336 (alteration added; citations omitted). Despite
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`these differences, “no bright line separates per se from [r]ule of [r]eason analysis.” Nat’l Bancard
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`Corp. (NaBanco) v. VISA U.S.A., Inc., 779 F.2d 592, 596 (11th Cir. 1986) (alteration adopted;
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`other alterations added; quotation marks and citation omitted).
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`Typical per se violations “include horizontal price fixing among competitors, group
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`boycotts, and horizontal market division — business relationships that, in the courts’ experience,
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`virtually always stifle competition.” Jacobs, 626 F.3d at 1334 (citation omitted). Once determined
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`to be applicable, the “per se rule [] applies a conclusive presumption that certain restraints
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`automatically are unreasonable, and therefore illegal, without further investigation.” Nat’l
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`Bancard, 779 F.2d at 597 (alteration added; footnote call number omitted). Notably, “‘the per se
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`rule is the trump card of antitrust law. When an antitrust plaintiff successfully plays it, he need
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`only tally his score.’” Id. at 598 (alteration adopted; quoting United States v. Realty Multi-List,
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`Inc., 629 F.2d 1351, 1362–63 (5th Cir. 1980)).
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`In applying the rule of reason, courts must ask whether the defendant “has shown that the
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`alleged restraint has had an anticompetitive effect on the market.” Procaps S.A., 845 F.3d at 1084.
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`“[C]ourts usually cannot properly apply the rule of reason without an accurate definition of the
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`relevant market.” Ohio v. Am. Express Co., 138 S. Ct. 2274, 2285 (2018) (alteration added;
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`footnote call number omitted). In cases involving horizontal restraints on trade, the plaintiff need
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`not define the relevant market and plead market power if it has offered actual evidence of adverse
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`effects on competition. See id. at 2285 n.7 (citations omitted). In cases involving vertical restraints
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`on trade, the plaintiff must do both because “[v]ertical restraints often pose no risk to competition
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`unless the entity imposing them has market power, which cannot be evaluated unless the [c]ourt
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`first defines the relevant market.” Id. (alterations added; citations omitted).
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` 9
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`Case 1:19-cv-21551-CMA Document 446 Entered on FLSD Docket 10/27/2021 Page 10 of 13
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`CASE NO. 19-21551-CIV-ALTONAGA/Louis
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`Although the TCAC adds significant factual allegations related to the product market (see
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`generally Mot., Ex. 2, TCAC [ECF No. 423-2]), the SCAC also addresses the salmon market at
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`length. (See generally SCAC; see also Reply 4 (citing SCAC ¶¶ 102, 134, 240, 255–64, 275)).
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`Indeed, the words “salmon market” appear 13 times throughout the SCAC. (See SCAC ¶¶ 6, 96,
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`102, 103, 109, 120, 129, 141, 169, 233, 251, 268, 270). The SCAC also addresses market power
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`(see id. ¶¶ 132, 231, 232), anticompetitive effects (see id. ¶ 296), and a lack of procompetitive
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`justifications (see id. ¶ 151) — the latter of which Plaintiffs cited to in their Opposition to
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`Defendants’ Motion to Dismiss (see [ECF No. 298] 24–25).
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`Although Plaintiffs could choose to “lighten [their] litigation burden” by litigating only
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`under a per se theory — and thus avoid the extensive economic analysis attendant to rule of reason-
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`based claims — the SCAC indicates Plaintiffs did not expressly disavow the rule of reason theory.
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`In re Processed Egg Prods. Antitrust Litig., 206 F. Supp. 3d 1033, 1051 (E.D. Pa. 2016) (alteration
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`added; citations omitted), aff’d, 962 F.3d 719 (3d Cir. 2020). Certainly, the above allegations
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`“would only be relevant to a rule of reason inquiry.” Id. at 1052 (citing Pace Elecs., Inc. v. Canon
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`Comput. Sys., Inc., 213 F.3d 118, 123 (3d Cir. 2000) (“We believe that requiring a plaintiff to
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`demonstrate that an injury stemming from a per se violation of the antitrust laws caused an actual,
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`adverse effect on a relevant market in order to satisfy the antitrust injury requirement comes
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`dangerously close to transforming a per se violation into a case to be judged under the rule of
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`reason.” (italicization omitted))).
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`Defendants cite an email in support of their contention that “Plaintiffs represented to us on
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`[a] call that they were pursuing only a per se theory of liability[.]” (Email from Ryan W. Marth 2
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`(alterations added; italicization omitted)).3 Yet, this email also undercuts Defendants’ position.
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`3 These emails relate to a discovery dispute. Defendants sought discovery related to fish other than salmon,
`which Plaintiffs opposed as not relevant. (See Opp’n 6). Defendants contend this opposition was evidence
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`10
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`Defendants noted in the email that they “were unable to locate any limitation to a per se case in
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`Plaintiffs’ pleadings[.]” (Id. (alteration added)). Defendants’ observation buttresses the notion
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`that Plaintiffs never limited — let alone memorialized a decision to limit — their claim to a per se
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`theory of liability.
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`Admittedly Plaintiffs, throughout the litigation, have relied on quintessential per se conduct
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`— an alleged conspiracy to fix prices. “An antitrust plaintiff, however, does not waive his ability
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`to pursue a rule of reason claim simply by arguing that a conspiracy should be found per
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`se unlawful.” In re Processed Egg Prods. Antitrust Litig., 206 F. Supp. 3d at 1051 (italicization
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`omitted; citing Broad. Music, Inc. v. Columbia Broad. Sys., Inc., 441 U.S. 1, 25 (1979)). The
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`defendants in Processed Egg Products opposed the plaintiffs’ rule of reason arguments at summary
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`judgment. See id. at 1051–52. Despite plaintiffs’ counsel stating to opposing counsel they “were
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`‘definitely sticking with the per se standard for this case[,]’” the court permitted plaintiffs to
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`proceed on a rule of reason theory, explaining that plaintiffs “ha[d] nevertheless developed
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`evidence of the effect of the conspiracy and its unlawful nature; such arguments would only be
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`relevant to a rule of reason inquiry.” Id. at 1052 (alterations added; italicization, citation, and
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`footnote call number omitted).
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`Here, Defendants similarly accuse Plaintiffs of expressly stating they planned to litigate
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`solely under a per se theory. (See Opp’n 6–7, 11). But as explained, the SCAC demonstrates
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`Plaintiffs did not commit to any theory, despite their “strenuous arguments in favor of application
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`that Plaintiffs intended to only pursue a per se claim, because, according to Defendants, information about
`other fish is clearly relevant to a rule of reason analysis. (See id.). Plaintiffs disagree, stating the market is
`simply farm-raised Atlantic salmon, and discovery about other fish is irrelevant. (See Reply 10). Without
`commenting on the merits of either position, the Court does not believe that Plaintiffs’ discovery position
`is inconsistent with a rule of reason theory; even now, when pursuing a rule of reason theory, they still
`contend that non-salmon fish discovery is irrelevant. (See id.).
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`11
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`of a per se rule[.]” In re Processed Egg Prods. Antitrust Litig., 206 F. Supp. 3d at 1052 (alteration
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`added; italicization omitted).
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`Relevance of Plaintiff’s Extension Request. Defendants lodge one final argument:
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`Plaintiffs’ plan to seek an extension of the class certification schedule, found in a separate Motion
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`for Modification [ECF No. 435] filed on October 12, 2021 and not yet fully briefed, “underscores
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`why amendment should be denied.” (Opp’n 12). As Defendants put it, “if Plaintiffs do not believe
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`they are capable of litigating this case without a six-month extension as it currently stands, then it
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`is clear that their proposed amendment cannot be accommodated without further derailing
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`progress.” (Id. 14). Not so. The two inquiries are separate. The Court can certainly grant
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`amendment and deny Plaintiffs’ extension request. And the Court will only grant an extension if
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`Plaintiffs establish good cause. See Fed. R. Civ. P. 16(b).
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`Further, Plaintiffs insist that “[e]ven if [they] never sought to amend the SCAC, they would
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`still be asking for an extension to the schedule because the pace of discovery — despite Plaintiffs[’]
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`efforts and Magistrate Judge Louis’s assistance — does not permit either them (or the Defendants,
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`for that matter) to meet” the Scheduling Order’s deadlines. (Reply 11–12 (alterations added;
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`emphasis omitted)). A cursory review of Plaintiffs’ now-filed Motion makes apparent that the
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`request for amendment is disconnected from the request for an extension; they lodged the request
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`for an extension because “the upcoming December 1, 2021 deadline for ‘the exchange of expert
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`witness summaries or reports on issues of class certification’ does not appear feasible[.]” (Pl.’s
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`Mot. Modification 1 (alteration added; quoting Sched. Order 1)). They explain that, among other
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`issues, their already-retained expert’s econometric analyses of the millions of transactions are
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`taking longer than anticipated (see id. 4), but they make no mention of any link between their
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`request to extend the deadlines and their request for leave to amend (see generally id.). There is
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`Case 1:19-cv-21551-CMA Document 446 Entered on FLSD Docket 10/27/2021 Page 13 of 13
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`CASE NO. 19-21551-CIV-ALTONAGA/Louis
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`no reason for the Court to think that Plaintiffs’ counsel are being untruthful or misleading about
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`the reasons for the extension request. In short, Defendants’ argument on this point also fails.
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`Conclusion. For the foregoing reasons, it is
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`ORDERED AND ADJUDGED that the Direct Purchaser Plaintiffs’ Motion for Leave to
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`Amend Complaint [ECF No. 423] is GRANTED. Plaintiffs shall file their third amended
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`complaint as a separate docket entry by October 28, 2021. Defendants’ combined response, or
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`separate answers, are due within the time permitted by the Rules.
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`DONE AND ORDERED in Miami, Florida, this 27th day of October, 2021.
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` _______________________________________
` CECILIA M. ALTONAGA
` CHIEF UNITED STATES DISTRICT JUDGE
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`counsel of record
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`cc:
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`13
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